| Bonomo v City of New York |
| 2010 NY Slip Op 08883 [78 AD3d 1094] |
| November 30, 2010 |
| Appellate Division, Second Department |
| Michelle Bonomo, Individually and as Parent and Natural Guardianof Joseph Bonomo, an Infant, Appellant, v City of New York et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and DrakeA. Colley of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiff appeals from ajudgment of the Supreme Court, Richmond County (Aliotta, J.), dated February 10, 2009, which,upon a jury verdict on the issue of liability in favor of the defendants and upon the denial of theplaintiff's application pursuant to CPLR 4404 (a) to set aside the verdict as against the weight ofthe evidence and as inconsistent, is in favor of the defendants and against her, dismissing thecomplaint.
Ordered that the judgment is affirmed, with costs.
On December 9, 1997, the plaintiff's son, then in the fifth grade, allegedly was injured as aresult of an accident that occurred during a tennis program for elementary school students in thegymnasium of Public School 23 in Staten Island. The plaintiff alleges, inter alia, that the failureof the defendants City of New York and the New York City Board of Education (hereinaftertogether the defendants) to provide adequate supervision and instruction was a proximate causeof the injuries to the plaintiff's son.
At trial, the defendants sought to have Robert Galen, the since-retired tennis instructorsupervising the children on the day of the accident, testify. The defendants had failed to produceGalen for a deposition. The plaintiffs successfully moved to preclude Galen's testimony, but theSupreme Court declined to submit a missing-witness charge relating to his absence.
The jury returned a verdict finding that, although the defendants had been negligent, theirnegligence was not a substantial factor in causing the accident. The plaintiff appeals, arguing thatthe verdict was against the weight of the evidence and fatally inconsistent, and that the SupremeCourt erred in failing to submit a missing-witness charge.
"A jury verdict should not be set aside as against the weight of the evidence unless theevidence at trial so preponderated in favor of the appealing party that the verdict could not havebeen reached on any fair interpretation of the evidence. Where the verdict can be reconciled witha reasonable view of the evidence, the successful party is entitled to the presumption that the jury[*2]adopted that view" (Barnett v Schwartz, 47 AD3d197, 205 [2007] [citations omitted]).
A "jury's finding that a party was at fault but that that fault was not a proximate cause of theaccident is inconsistent and against the weight of the evidence only when the issues are 'soinextricably interwoven as to make it logically impossible to find negligence without also findingproximate cause' " (Schaefer v Guddemi, 182 AD2d 808, 809 [1992], quoting Rubinv Pecoraro, 141 AD2d 525, 527 [1988]; see Rivera v MTA Long Is. Bus, 45 AD3d557, 558 [2007]). Thus, where there is a reasonable view of the evidence under which it is notlogically impossible to reconcile a finding of negligence but no proximate cause, it will bepresumed that, in returning such a verdict, the jury adopted that view (see Abre vSherman, 36 AD3d 725, 726 [2007]).
Here, the jury's verdict was not inconsistent. The jury could have found that while thedefendants were negligent, the accident was caused solely by the conduct of the plaintiff's sonand/or the classmate who struck him, or that the absence of the defendants' negligence would nothave prevented the occurrence of the accident.
Moreover, the Supreme Court did not err in declining to submit a missing-witness charge tothe jury (see Pope v 818 Jeffco Corp., 74 AD3d 1163 [2010]; Coliseum TowersAssoc. v County of Nassau, 2 AD3d 562, 565 [2003]; Hershkowitz v Saint Michel,143 AD2d 809 [1988]). Rivera, J.P., Florio, Belen and Austin, JJ., concur.