| Gaudiello v City of New York |
| 2011 NY Slip Op 00486 [80 AD3d 726] |
| January 25, 2011 |
| Appellate Division, Second Department |
| Guiseppina Gaudiello, Appellant, v City of New York etal., Defendants, and Motiva Enterprises, LLC, et al., Respondents. |
—[*1] Furey, Kerley, Walsh, Matera & Cinquemani, P.C., Seaford, N.Y. (Lauren B. Bristol ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment ofthe Supreme Court, Queens County (Weiss, J.), entered October 22, 2009, which, upon a juryverdict in favor of the defendants Motiva Enterprises, LLC, and Atlantic Auto Care, Inc., andagainst her on the issue of liability, and upon the denial of her motion pursuant to CPLR 4404 (a)to set aside the verdict, inter alia, as contrary to the weight of the evidence, and for a new trial,dismissed the complaint insofar as asserted against those defendants.
Ordered that the judgment is reversed, on the law, with costs, the complaint is reinstatedinsofar as asserted against the defendants Motiva Enterprises, LLC, and Atlantic Auto Care, Inc.,and a new trial is granted.
A jury verdict should not be set aside as contrary to the weight of the evidence unless the jurycould not have reached the verdict by any fair interpretation of the evidence (see Lolik v BigV Supermarkets, 86 NY2d 744 [1995]; Nicastro v Park, 113 AD2d 129 [1985]).Whether a jury verdict should be set aside as contrary to the weight of the evidence does notinvolve a question of law, but rather requires a discretionary balancing of many factors (seeCohen v Hallmark Cards, 45 NY2d 493 [1978]; Nicastro v Park, 113 AD2d 129[1985]). Where a jury verdict with respect to negligence and proximate causation isirreconcilably inconsistent, that verdict must be set aside as contrary to the weight of theevidence (see Shaw v Board of Educ. ofCity of N.Y., 5 AD3d 468 [2004]; Dellamonica v Carvel Corp., 1 AD3d 311, 311-312 [2003]).
Under the circumstances of this case, the verdict finding that the defendants MotivaEnterprises, LLC (hereinafter Motiva), and Atlantic Auto Care, Inc. (hereinafter Atlantic), werenegligent, but that their negligence was not a proximate cause of the accident was inconsistentand not supported by a fair interpretation of the evidence (see Shaw v Board of Educ. of City of N.Y., 5 AD3d 468 [2004];Dellamonica v Carvel Corp., 1 AD3d at 312). The plaintiff, who was the only witness totestify at trial, consistently stated that she tripped and fell over a defect in the sidewalk abuttingthe premises owned by the defendant Motiva and occupied by the defendant Atlantic (hereinaftertogether the defendants). The defendants failed to submit any evidence to refute the plaintiff's[*2]testimony. Thus, the plaintiff's motion pursuant to CPLR4404 (a) to set aside the verdict should have been granted.
In light of our determination that a new trial should be granted, we note that the trial courterred in charging the jury that "[a] pedestrian is charged with the responsibility of looking wherethey are going and is presumed and bound to see what by the proper use of their senses there is tosee." The trial court failed to clearly charge the jury that if it determined that the alleged unsafecondition was open and obvious and, thus, that there was no duty to warn, then the jury shouldproceed to consider the plaintiff's other claims concerning the unsafe condition, and that the factthat the unsafe condition was open and obvious only raised an issue of fact as to the plaintiff'scomparative negligence, if any (see PJI3d 2:90). Skelos, J.P., Eng, Belen and Lott, JJ.,concur.