| Dessasore v New York City Hous. Auth. |
| 2010 NY Slip Op 00896 [70 AD3d 440] |
| February 9, 2010 |
| Appellate Division, First Department |
| Davin Dessasore, Respondent-Appellant, v New York CityHousing Authority, Appellant-Respondent. |
—[*1] Sonkin & Fifer, New York (David Samel of counsel), for respondent-appellant.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered March 20, 2009, whichdenied defendant's posttrial motion to set aside the jury's verdict on liability, granted both parties'motions to set aside the damages award and directed a new trial on damages, modified, on thelaw, defendant's motion to set aside the liability verdict granted and the matter remanded for anew trial of all the issues, and otherwise affirmed, without costs.
Plaintiff seeks damages for injuries he sustained when he fell down a stairway in defendant'sbuilding after tripping on a handrail that had partially come loose from the wall and was restingat the top of the steps. At trial, plaintiff conceded that he was looking straight ahead at the timeof the accident and had not reached for the handrail before commencing his descent on thestairway. There was evidence that plaintiff may have been talking on his cell phone at the time ofthe accident. The jury found that both plaintiff and defendant were negligent but that plaintiff'snegligence was not a substantial factor in causing his injuries. It awarded plaintiff $5 million forpast pain and suffering and nothing for medical expenses or future pain and suffering.
The jury's award of zero damages for medical expenses and future pain and suffering cannotbe explained rationally, given the extent of plaintiff's injuries and the evidence of permanence.As the trial court found, the jury either did not understand the court's instructions on damages ordid not follow them. The court properly declined to speculate as to the jury's thinking, anddirected a new trial on damages.
We would go further. Although defendant's challenge to the verdict on liability asinconsistent is unpreserved because it was not raised before the jury was discharged (seeBarry v Manglass, 55 NY2d 803 [1981]), portions of the verdict are indisputably irrational,not only with respect to the anomalous damages award, but also with respect to the issue ofliability. Accordingly, we consider the matter in the interest of justice (CPLR 4404 [a]). Thejury's finding of liability is irreconcilably inconsistent. As noted, there was evidence that plaintiffwas not looking down before he proceeded to descend the stairs, that he was not paying attentionto his surroundings, and that he was talking on a cell phone just before he fell. Under thesecircumstances, "the issues of negligence and proximate cause are so inextricably interwoven asto make it logically impossible to find negligence without also finding [*2]proximate cause" (McCollin v New York City Hous. Auth.,307 AD2d 875, 876 [2003]). Concur—Andrias, J.P., Moskowitz and Abdus-Salaam, JJ.
Saxe and Sweeny, JJ., dissent in a memorandum by Saxe, J., as follows: Plaintiff establishedat trial that he was injured when he fell down a stairway in defendant's building after tripping ona handrail that had come loose from the wall and was resting at the top of the steps. Despiteplaintiff's admission that he was looking straight ahead at the time of the accident and had notreached for the handrail before commencing his descent on the stairway, and evidence thatplaintiff may have been talking on his cell phone at the time of the accident, the jury had morethan enough evidentiary support for its finding that defendant Housing Authority was 100%liable for plaintiff's accident.
However, as the trial court correctly recognized, there was an irreconcilable inconsistency inthe jury's award of damages. Once the jury determined that plaintiff sustained injuries causingsubstantial past pain and suffering, its failure to award any damages for medical expenses andfuture pain and suffering cannot be explained rationally. Either the jury did not understand thecourt's instructions on damages or did not follow them, making it necessary to direct a new trialon damages. Nor may we limit the new damages trial to the issues of medical expenses andfuture pain and suffering, since it was possible that the $5 million award was intended to includemore than one category of damages.
The irrationality of the damages award does not affect the jury's liability finding. The issueof liability is not so inextricably interwoven with the issue of damages as to warrant a new trialof both issues. Nor is there anything irreconcilable about the jury's findings on negligence andproximate cause that would warrant upsetting the jury's liability determination. Where a jury'sfindings are rationally based on the evidence before it, a reviewing court should not set thosefindings aside simply because it might have found otherwise (Rivera v 4064 Realty Co., 17 AD3d 201, 203 [2005], lvdenied 5 NY3d 713 [2005]). That deferential standard of review for jury findings continuesto apply even where the findings on another issue, such as the damages award in this instance,should be set aside and the issue re-tried. Here, the jury rationally concluded that althoughplaintiff was negligent in talking on his cell phone and not looking down as he approached thestairs, his negligence was not a proximate cause of his accident, and that the sole proximatecause of the accident was the handrail on the floor. There is no basis for this Court to set thatfinding aside. Moreover, the exercise of our interest of justice jurisdiction to review defendant'sunpreserved challenge to the liability verdict is not warranted. The trial court's grant of a newtrial solely on the issue of damages was proper.