| Nikollbibaj v City of New York |
| 2013 NY Slip Op 03306 [106 AD3d 789] |
| May 8, 2013 |
| Appellate Division, Second Department |
| Robertina Nikollbibaj, Appellant, v City of NewYork et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo,Janet Keller, and Karen M. Griffin of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from ajudgment of the Supreme Court, Queens County (Taylor, J.), entered August 5, 2011,which, upon a jury verdict on the issue of liability, finding that the defendants were not atfault in the happening of the accident, and upon the denial of her motion pursuant toCPLR 4404 (a) to set aside the jury verdict and for judgment as a matter of law or, in thealternative, to set aside the jury verdict as contrary to the weight of the evidence and for anew trial, is in favor of the defendants and against her, in effect, dismissing thecomplaint.
Ordered that the judgment is affirmed, with costs.
The plaintiff was injured when a portion of a magnetic lock fell from a door or itsframe in a hallway of the facility of the defendant Elmhurst Hospital, and struck her. Thejury was instructed, inter alia, on the doctrine of res ipsa loquitur, and it returned averdict on the issue of liability in favor of the defendants.
The doctrine of res ipsa loquitur permits an inference of negligence to be drawnsolely from the happening of an accident, upon a plaintiff's showing that the event is ofthe kind which ordinarily does not occur in the absence of negligence and was caused byan agency or instrumentality within the exclusive control of the defendant, without anyvoluntary action or contribution on the part of the plaintiff (see Morejon v Rais Constr.Co., 7 NY3d 203, 209 [2006]; Dermatossian v New York City Tr.Auth., 67 NY2d 219, 226 [1986]; Corcoran v Banner Super Mkt., 19 NY2d425, 430 [1967]). "The rule has the effect of creating a prima facie case of negligencesufficient for submission to the jury, and the jury may—but is not requiredto—draw the permissible inference" (Dermatossian v New York City Tr.Auth., 67 NY2d at 226; see Morejon v Rais Constr. Co., 7 NY3d at210-212). "[T]he use of res ipsa loquitur does not relieve the plaintiff of the burden ofproof" (Crockett v Mid-CityMgt. Corp., 27 AD3d 611, 612 [2006]; see Keyser v KB Toys, Inc., 82 AD3d 713, 714 [2011];Weeden v Armor El. Co., 97 AD2d 197, 204 [1983]). In a res ipsa loquitur case,the jury has great latitude; even when the plaintiff has established a prima facie case andthe defendant has offered no proof, [*2]the jurynonetheless is entitled to find for the defendant (see Keyser v KB Toys, Inc., 82AD3d at 714; Crockett v Mid-City Mgt. Corp., 27 AD3d at 612; Weeden vArmor El. Co., 97 AD2d at 204), subject, of course, to appellate review.
To set aside a jury verdict on the basis that the evidence was legally insufficient, thecourt must conclude "that there is simply no valid line of reasoning and permissibleinferences which could possibly lead rational [persons] to the conclusion reached by thejury on the basis of the evidence presented at trial" (Cohen v Hallmark Cards, 45NY2d 493, 499 [1978]; seeSoto v New York City Tr. Auth., 6 NY3d 487, 492 [2006]; Lolik v Big VSupermarkets, 86 NY2d 744, 745 [1995]; Fellin v Sahgal, 35 AD3d 800, 801 [2006]). Viewing theevidence in the light most favorable to the defendants (see Stephenson v Hotel Empls. &Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 271 [2006];Mirand v City of New York, 84 NY2d 44, 50 [1994]), we conclude that a validline of reasoning and permissible inferences could lead a rational person to theconclusion reached by the jury, since a rational person could have concluded that thedoor and frame from which the magnetic lock had fallen were accessible to and used bynumerous persons and, hence, were not instrumentalities within the exclusive control ofany of the defendants.
The standard for determining whether the jury's verdict was contrary to the weight ofthe evidence is whether the evidence so preponderated in favor of the plaintiff that theverdict could not have been reached on any fair interpretation of the evidence (seeGrassi v Ulrich, 87 NY2d 954, 956 [1996]; Lolik v Big V Supermarkets, 86NY2d at 745). "[T]he discretionary power to set aside a jury verdict and order a new trialmust be exercised with considerable caution, for in the absence of indications thatsubstantial justice has not been done, a successful litigant is entitled to the benefits of afavorable jury verdict" (Nicastro v Park, 113 AD2d 129, 133 [1985]; seeKeyser v KB Toys, Inc., 82 AD3d at 714). A review of the evidence in this casecompels our conclusion that a fair interpretation of the evidence supported the verdict infavor of the defendants.
Contrary to the plaintiff's contention, the Supreme Court did not improvidentlyexercise its discretion in precluding the testimony of the plaintiff's expert based upon theplaintiff's noncompliance with CPLR 3101 (d) (1) (i) (see Sushchenko v DykerEmergency Physicians Serv., P.C., 86 AD3d 638, 639 [2011]; Mohamed v New York City Tr.Auth., 80 AD3d 677, 678 [2011]; Parlante v Cavallero, 73 AD3d 1001, 1003 [2010]).Indeed, the plaintiff did not disclose her intent to call any expert witness until after thetrial had begun, and she provided no explanation for that failure (see Lucian v Schwartz, 55AD3d 687, 688 [2008]; Caccioppoli v City of New York, 50 AD3d 1079,1080-1081 [2008]). Skelos, J.P., Balkin, Cohen and Miller, JJ., concur.