| Telsaint v City of New York |
| 2014 NY Slip Op 05974 [120 AD3d 794] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| Lidy Telsaint, Appellant, v City of New York,Respondent. |
Koenigsberg & Associates P.C. (Pollack, Pollack, Isaac & De Cicco, LLP,New York, N.Y. [Brian J. Isaac], of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo andScott Shorr of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby her brief, from so much of an order of the Supreme Court, Kings County (Sweeney,J.), dated January 14, 2013, as granted that branch of the defendant's motion which waspursuant to CPLR 4404 (a) to set aside a jury verdict in favor of her on the issues ofliability and damages and for judgment as a matter of law.
Ordered that the order is reversed insofar as appealed from, on the law, without costsor disbursements, that branch of the defendant's motion which was pursuant to CPLR4404 (a) to set aside the jury verdict on the issues of liability and damages and forjudgment as a matter of law is denied, the determination in the order denying, asacademic, that branch of the defendant's motion which was pursuant to CPLR 4404 (a) toset aside the jury verdict on the issue of liability as contrary to the weight of the evidenceand for a new trial is vacated, and that branch of the motion is denied on the merits, andthe determination in the order denying, as academic, that branch of the defendant'smotion which was pursuant to CPLR 4404 (a) to set aside, as excessive, the jury verdicton the issue of damages awarding the plaintiff the principal sums of $750,000 for pastpain and suffering and $1,500,000 for future pain and suffering is vacated, and thatbranch of the motion is granted to the extent of directing a new trial on the issue ofdamages for past and future pain and suffering only, unless within 30 days after theservice upon the plaintiff of a copy of this decision and order, the plaintiff shall serve andfile in the office of the Clerk of the Supreme Court, Kings County, a written stipulationconsenting to reduce the award of damages for past pain and suffering from the principalsum of $750,000 to the principal sum of $350,000 and the award of damages for futurepain and suffering from the principal sum of $1,500,000 to the principal sum of$900,000.
The plaintiff slipped and fell on ice on a sidewalk abutting the defendant's property,and was injured. Snow had fallen five days before the accident, and the snow had beenshoveled into piles on either side of the sidewalk, with a path cleared in the middle forpedestrians. The temperatures had fluctuated in the days leading up to the accident,causing the piles of snow to melt and then freeze into the ice on which the plaintiffslipped. The plaintiff commenced this action against the defendant. A jury found thedefendant liable, and awarded the plaintiff the sums of $750,000 for past pain andsuffering and $1,500,000 for future pain and suffering. The Supreme [*2]Court granted that branch of the defendant's motion whichwas pursuant to CPLR 4404 (a) to set aside the verdicts and for judgment as a matter oflaw, concluding that the plaintiff failed to adduce legally sufficient evidence that thedefendant had constructive notice of the slippery condition of the sidewalk.
For a court to conclude that a jury verdict is not supported by legally sufficientevidence, there must be no valid line of reasoning and permissible inferences whichcould possibly lead rational persons to the conclusions reached by the jury on the basis ofthe evidence presented at trial (see Cohen v Hallmark Cards, 45 NY2d 493, 499[1978]; Anthony v New YorkCity Tr. Auth., 38 AD3d 484, 485-486 [2007]; Nicastro v Park, 113AD2d 129, 132 [1985]).
Under the circumstances presented here, the jury rationally could have concludedthat the defendant had constructive notice of the icy condition that caused the plaintiff toslip and fall (see Anthony v New York City Tr. Auth., 38 AD3d at 485; cf. Fitzgerald v Adirondack Tr.Lines, Inc., 23 AD3d 907 [2005]). To establish the existence of constructivenotice, a plaintiff must show that the defect was visible and apparent and that the defectexisted for a sufficient length of time prior to an accident to permit the defendant todiscover and remedy it (see Gordon v American Museum of Natural History, 67NY2d 836, 837 [1986]; Anthony v New York City Tr. Auth., 38 AD3d at485-486). Here, the jury rationally could have concluded from the testimony that iceoriginated from the piles of snow on the sidewalk that had melted and then frozen, andthat this condition existed for a sufficient period of time to allow the defendant todiscover and remedy it (see Roca v Gerardi, 243 AD2d 616, 617 [1997]).
Since the Supreme Court granted that branch of the defendant's motion which was toset aside the jury verdict and for judgment as a matter of law, it denied, as academic, thealternative branches of the defendant's motion which were to set aside the jury verdict ascontrary to the weight of the evidence and for a new trial or to set aside, as excessive, thejury verdict on the issue of damages for past and future pain and suffering. Under thecircumstances of this case, in which the complete record of the trial is before us, and inthe interest of judicial economy, we address the merits of these alternative branches ofthe defendant's motion (seeCusumano v City of New York, 104 AD3d 639, 641 [2013]).
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 on the issue of liabilitywere based on a fair interpretation of the evidence and, thus, were not contrary to theweight of the evidence.
However, the damages awarded to the plaintiff for past and future pain and sufferingdeviated materially from what would be reasonable compensation to the extent indicatedherein (see CPLR 5501 [c]; Williams v New York City Tr. Auth., 95 AD3d 1003, 1005[2012]; Eun Sook Maing v PoChing Fong, 71 AD3d 1077, 1078 [2010]; Rivera v Lincoln Ctr. for Performing Arts, Inc., 16 AD3d274 [2005]; cf. Fishbane vChelsea Hall, LLC, 65 AD3d 1079 [2009]). Rivera, J.P., Sgroi, Cohen andBarros, JJ., concur.