| Casella v City of New York |
| 2010 NY Slip Op 00089 [69 AD3d 549] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Cathleen A. Casella, Appellant, v City of New York,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and JulieSteiner of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals (1), as limited byher brief, from so much of a judgment of the Supreme Court, Richmond County (Marin, J.),dated April 22, 2008, as, upon a jury verdict on the issue of liability, is in favor of the defendantand against her dismissing the complaint, and (2) from an order of the same court dated August19, 2008, which denied her motion pursuant to CPLR 4404 (a) to set aside the jury verdict asunsupported by legally sufficient evidence and for judgment as a matter of law on the issue ofliability or, in the alternative, to set aside the verdict as contrary to the weight of the evidenceand for a new trial on the issue of liability.
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that the order is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The plaintiff, a New York City Police Officer, allegedly was injured, while in the line ofduty, when she fell on a metal grate covering a window well as she was stepping out of a patrolcar in the driveway of the 123rd Precinct station house in Staten Island. Claiming that a defect inthe metal grate caused her to fall, the plaintiff commenced this action against the defendant, Cityof New York, to recover damages for personal injuries, inter alia, pursuant to General MunicipalLaw § 205-e. Specifically, the plaintiff alleged that the City violated its duty underAdministrative Code of City of NY former § 27-127 to maintain its buildings in a safecondition, and under Administrative Code of City of NY former § 27-128 to keep itsbuilding and facilities in a safe condition. At trial, the plaintiff testified that her foot becamecaught between the metal grate and the surrounding cement, causing her to lose her balance andfall. However, she admitted that she did not look down when she exited the patrol car, and didnot see the metal grate before she fell. Furthermore, she did not mention, at a prior trial, duringher examination before trial in this action, [*2]or at the hearingheld pursuant to General Municipal Law § 50-h, that her foot became caught; rather, shehad testified only that, as she stepped down onto the metal grate, she lost her balance and fell.
General Municipal Law § 205-e provides, in relevant part, that police officers have aright of action in situations where the "negligence of any person . . . in failing tocomply with the requirements of any of the statutes, ordinances, rules, orders and requirements. . . of the federal, state . . . or city governments" "directly orindirectly" causes the police officer's injury or death during the discharge of his or her duties(General Municipal Law § 205-e [1]). To make out a claim under section 205-e, a plaintiffmust " '[1] identify the statute or ordinance with which the defendant failed to comply, [2]describe the manner in which the [police officer] was injured, and [3] set forth those facts fromwhich it may be inferred that the defendant's negligence directly or indirectly caused the harm' "(Williams v City of New York, 2NY3d 352, 363 [2004], quoting Giuffrida v Citibank Corp., 100 NY2d 72, 79[2003]).
Contrary to the plaintiff's contention, the trial court properly instructed the jury on causation(see Giuffrida v Citibank Corp., 100 NY2d 72 [2003]; Mullen v Zoebe, Inc., 86NY2d 135, 140 [1995]; Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423, 441[1995]; Terranova v New York City Tr.Auth., 49 AD3d 10 [2007]; Plunkett v Emergency Med. Serv. of N.Y. City, 234AD2d 162 [1996]), since the "charge as a whole conveyed the correct legal principles"(Manna v Don Diego, 261 AD2d 590, 591 [1999]). Moreover, the record fails toestablish the existence of substantial juror confusion, occasioned by the trial court's instructions,that would warrant a new trial (see Mattei v Figueroa, 262 AD2d 459 [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]).Here, the jury found that the City was negligent, but that its negligence was not a proximatecause of the plaintiff's accident. "A jury's finding that a party was at fault but that such fault wasnot a proximate cause of the accident is inconsistent and against the weight of the evidence onlywhen the issues are so inextricably interwoven as to make it logically impossible to findnegligence without also finding proximate cause" (Garrett v Manaser, 8 AD3d 616, 617 [2004]; see Karsdon v Barringer, 20 AD3d551 [2005]; Misa v Filancia, 2AD3d 810 [2003]; Perez vAudubon at 186th St., 1 AD3d 492 [2003]). A contention that a verdict is inconsistentand irreconcilable must be reviewed in the context of the court's charge (see Shapira vKruger, 231 AD2d 509, 510 [1996]; Gross v Napoli, 216 AD2d 524, 525 [1995]).Where the verdict can be reconciled with a reasonable view of the evidence, the successful partyis entitled to the presumption that the jury adopted that view (see Rubin v Pecoraro, 141AD2d 525, 526 [1988]). Under the circumstances, the issues of negligence and causation werenot inextricably interwoven, and the jury's determination that the defendant's failure to maintainthe metal grate in a safe condition was not a cause of the accident was not contrary the weight ofthe evidence (see Plunkett v Emergency Med. Serv. of N.Y. City, 234 AD2d 162 [1996];Rubin v Pecoraro, 141 AD2d 525 [1988]).
The plaintiff's remaining contentions are without merit. Dillon, J.P., Florio, Hall and Sgroi,JJ., concur.