| Cusumano v City of New York |
| 2013 NY Slip Op 01373 [104 AD3d 639] |
| March 6, 2013 |
| Appellate Division, Second Department |
| Nocenzu Cusumano et al., Appellants, v City ofNew York, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgowand Elizabeth S. Natrella of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Queens County(Taylor, J.), dated November 23, 2011, as granted that branch of the defendant's motionwhich was pursuant to CPLR 4404 (a) to set aside a jury verdict on the issue of liabilityfinding the defendant at fault in the happening of the accident and for judgment as amatter of law.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,that branch of the defendant's motion which was pursuant to CPLR 4404 (a) to set asidethe jury verdict on the issue of liability and for judgment as a matter of law is denied, thejury verdict is reinstated, so much of the order as denied, as academic, the alternativebranch of the defendant's motion which was to set aside the jury verdict as contrary to theweight of the evidence and for a new trial is vacated, that branch of the defendant'smotion is denied on the merits, and the matter is remitted to the Supreme Court, QueensCounty, for a determination on the issue of damages.
The plaintiffs alleged that they sustained damages as a result of an incident where theplaintiff Nocenzu Cusumano (hereinafter the injured plaintiff) fell down a staircase. At aretrial of this action (seeCusumano v City of New York, 63 AD3d 5 [2009], revd 15 NY3d 319[2010]), the injured plaintiff, a firefighter, testified that on December 22, 1999, he wasattending a training seminar at a building owned by the defendant. When he attempted toaccess the basement of the building, he slipped on debris in a stairwell, lost his balance,and fell forward. The injured plaintiff testified that as he fell forward, he unsuccessfullyattempted to grab a handrail. In a report prepared in connection with the accident, theinjured plaintiff stated that he "tried to catch his balance by grabbing for the bannister,but was unable to do so." The injured plaintiff testified that he fell down the staircase andlanded on the basement floor.
The plaintiffs presented expert testimony to establish that the handrail, which wasflush against the wall, was dangerous and defective. The plaintiffs asserted that thedefective nature of the handrail violated Administrative Code of the City of New York§§ 27-127 and 27-128, and that these violations were a cause of the injuredplaintiff's accident.
The jury returned a verdict on the issue of liability finding the defendant at fault inthe happening of the accident. The defendant subsequently moved pursuant to CPLR4404 (a) to set [*2]aside the jury verdict and for judgmentas a matter of law or, alternatively, to set aside the jury verdict as contrary to the weightof the evidence and for a new trial. In the order appealed from, the Supreme Courtdetermined that there was no evidence demonstrating that the allegedly defective handrailcaused the injured plaintiff's accident. Accordingly, it granted that branch of thedefendant's motion which was to set aside the jury verdict on the issue of liability and forjudgment as a matter of law. It denied, as academic, that branch of the defendant's motionwhich was to set aside the jury verdict as contrary to the weight of the evidence and for anew trial.
For a court to conclude that a jury verdict is not supported by legally sufficientevidence, it must determine that there is "no valid line of reasoning and permissibleinferences which could possibly lead rational [people] to the conclusion reached by thejury on the basis of the evidence presented at trial" (Cohen v Hallmark Cards, 45NY2d 493, 499 [1978]; seeFrenchman v Westchester Med. Ctr., 77 AD3d 618, 618-619 [2010]). Here,contrary to the Supreme Court's determination, the jury could have rationally concludedthat the defective nature of the handrail constituted "a factor that . . .play[ed] a part in producing the [accident]" so as to establish liability under GeneralMunicipal Law § 205-a (Giuffrida v Citibank Corp., 100 NY2d 72, 80[2003]; see Kornspan v Hertzberg, 197 AD2d 673, 675 [1993]).
Since the Supreme Court granted that branch of the defendant's motion which was toset aside the jury verdict on the issue of liability and for judgment as a matter of law, itdenied, as academic, the alternative branch of the defendant's motion which was to setaside the jury verdict as contrary to the weight of the evidence and for a new trial. Underthe circumstances of this case, and in the interest of judicial economy, we address thedefendant's contention that the jury verdict on the issue of liability was contrary to theweight of the evidence and that a new trial should be held on that issue (see Goldsmith Motors Corp. vChemical Bank, 78 AD3d 655, 655-656 [2010]; see also PDK Labs, Inc. v G.M.G.Trans W. Corp., 101 AD3d 970 [2012]).
A jury verdict should not be set aside as contrary to the weight of the evidence unlessthe jury could not have reached the verdict by any fair interpretation of the evidence(see Lolik v Big V Supermarkets, 86 NY2d 744, 745-746 [1995]; Nicastro vPark, 113 AD2d 129, 130 [1985]). Here, the jury's findings were based on a fairinterpretation of the evidence and, thus, were not contrary to the weight of the evidence(see Kornspan v Hertzberg, 197 AD2d at 675).
The defendant's contention that violations of Administrative Code §§27-127 and 27-128 may not form a predicate for liability under General Municipal Law§ 205-a is without merit (see Anderson v Columbari, 79 AD3d 679, 681 [2010]; Terranova v New York City Tr.Auth., 49 AD3d 10, 17 [2007]; Farrington v City of New York, 240AD2d 697, 698 [1997]; cf.Reddy v 369 Lexington Ave. Co., L.P., 31 AD3d 732, 733 [2006]; Jang Hee Lee v Sung WhunOh, 3 AD3d 473, 474 [2004]; Ahmad v City of New York, 298 AD2d473, 474 [2002]). Rivera, J.P., Chambers, Hall and Miller, JJ., concur.