| Coma v City of New York |
| 2012 NY Slip Op 05608 [97 AD3d 715] |
| July 18, 2012 |
| Appellate Division, Second Department |
| Pauline Coma et al., Appellants, v City of New York,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Elizabeth S. Natrella and KayeScholer LLP [William Hoffman and David Cousineau], of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from ajudgment of the Supreme Court, Kings County (Vaughan, J.), dated March 24, 2010, which,upon a jury verdict and the denial of their motion pursuant to CPLR 4404 (a) to set aside theverdict as contrary to the weight of the evidence, is in favor of the defendant and against themdismissing the complaint.
Ordered that the judgment is affirmed, with costs.
The plaintiff Pauline Coma (hereinafter the injured plaintiff) allegedly was injured when shetripped and fell on a raised portion of the sidewalk on Hoyt Street in Brooklyn. The injuredplaintiff and her husband, suing derivatively, subsequently commenced this action against thedefendant City of New York alleging that the accident had been caused by its negligent failure tomaintain and repair the sidewalk. At trial, the injured plaintiff testified that when she was about afoot away from the sidewalk defect she tripped over, she turned her head to look behind her inorder to ensure that she was not being followed by anyone. She further testified that she did notsee the defect before she fell because the accident occurred at night. At the conclusion of thetrial, the jury returned a verdict finding that the defendant had prior written notice of the unsafecondition that allegedly caused the accident and was negligent in failing to repair the condition,but that the defendant's negligence was not a substantial factor in causing the accident.
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]). " 'Ajury's finding that a party was at fault but that such 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' " (Stewart v Marte,91 AD3d 754, 755 [2012], quoting Garrett v Manaser, 8 AD3d 616, 617 [2004]; see DeSalvo v Kreynin, 95 AD3d819 [2012]). "[W]here 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 [*2]a verdict, the jury adoptedthat view" (Bonomo v City of NewYork, 78 AD3d 1094, 1095 [2010]; see Jankauskas v Sandberg, 71 AD3d 1090, 1091 [2010]; Casella v City of New York, 69 AD3d549, 551 [2010]). Here, the jury's verdict was not inconsistent and contrary to the weight ofthe evidence. The issues of negligence and proximate cause were not inextricably interwoven,and the jury could have reasonably concluded that while the defendant negligently failed to repairthe subject sidewalk defect, the accident was caused solely by the conduct of the injured plaintiff,who admitted that she turned her head to look behind her just before she tripped (see Bonomov City of New York, 78 AD3d at 1095; Casella v City of New York, 69 AD3d at551; Rubin v Pecoraro, 141 AD2d 525, 526-527 [1988]).
Further, the Supreme Court properly permitted the defendant's attorney to cross-examine theinjured plaintiff, subject to connection, about a prior accident in which she sustained injuries toher back and neck. Although the injured plaintiff sustained injuries to her right shoulder in theaccident at issue in this case, the defendant adduced testimony from its expert witness indicatingthat the existence of a prior neck injury would be medically relevant because the fifth cervicalroot controls sensation in the shoulder. Under these circumstances, evidence regarding theinjuries the injured plaintiff suffered in her prior accident was relevant, and thecross-examination was properly permitted (see Ocampo v Pagan, 68 AD3d 1077, 1079 [2009]; Bowers vJohnson, 26 AD2d 552 [1966]).
The plaintiffs' contention that they were deprived of a fair trial by certain of the defendant'sattorney's summation comments is largely unpreserved for review, since their attorney objectedto only one of the comments now alleged to have been improper (see Turuseta v Wyassup-Laurel GlenCorp., 91 AD3d 632, 634 [2012]). Although we agree that the comment to which anobjection was lodged was improper, it did not deprive the plaintiffs of a fair trial (see Jun Suk Seo v Walsh, 82 AD3d710 [2011]; Toure v Board of Educ. of City of N.Y., 127 AD2d 759 [1987]). Rivera,J.P., Eng, Lott and Cohen, JJ., concur.