Scavuzzo v City of New York

[*1] Scavuzzo v City of New York 2006 NY Slip Op 51323(U) [12 Misc 3d 1180(A)] Decided on May 1, 2006 Supreme Court, Kings County Dabiri, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 1, 2006
Supreme Court, Kings County

Santo Scavuzzo, Plaintiff,

against

City of New York and Andrei Kuzin, Defendants.



24863/95

Gloria M. Dabiri, J.

Upon the foregoing papers, defendant Andrei Kuzin moves, pursuant to CPLR 4404(a), to set aside the jury verdict in the instant action on the grounds that (1) the verdict was against the weight of the evidence because the evidence adduced at trial was insufficient to establish that a motor vehicle owned or operated by Kuzin made contact with plaintiff Santo Scavuzzo's bicycle at the time and location of the subject accident or that Kuzin negligently caused said accident, and (2) the damages awarded by the jury for past and future pain and suffering were excessive. Defendant the City of New York (the City) cross-moves, pursuant to CPLR 4404(a), to set aside the jury verdict on the grounds that (1) the jury's finding that the City was negligent because it affirmatively created the pothole which allegedly contributed to the happening of the accident was against the weight of the evidence, and (2) the damages award for past and future pain and suffering was excessive. Plaintiff cross-moves for an order, pursuant to CPLR 3025, amending the pleadings to increase the ad damnum clause from $1 million to $1.5 million.

THE JURY TRIAL

The instant action was tried before a jury in January 2005. The trial resulted in a jury [*2]verdict in plaintiff's favor against defendants. In determining defendants' relative liability, the jury found that Kuzin and the City were, respectively, 95% and 5% at fault. The total amount awarded by the jury to plaintiff was $1,500,000, of which $1,000,000 was designated as compensation for past pain and suffering, and $500,000, a compensation for future pain and suffering for a period of 43.6 years.

At trial, plaintiff testified that the accident occurred on August 23, 1994 as he was riding his bicycle on Coney Island Avenue in Brooklyn. Coney Island Avenue consists of four lanes of traffic, two running north and two running south. Just prior to the accident, plaintiff made a left turn onto Coney Island Avenue from Avenue S and proceeded northbound on Coney Island Avenue in the left lane, heading toward Avenue R. He stated that at the time he made the left hand turn he knew it was in his "best interest to eventually make [his] way over to the side of the road where the parked cars were . . . where bicycles would drive." He traveled in the left hand lane for about 200 feet. After looking over his shoulder to make sure it was safe to move to his right and observing no vehicles either behind him or in the right lane, plaintiff signaled with his right hand and changed lanes into the right lane. Almost immediately after entering the right lane, plaintiff realized he had ridden his bicycle into a hole in the street. Plaintiff stated that, upon striking the hole, the bicycle started to shake and he started to fall toward his left side. Although he tried to right himself, he continued to fall toward the left near the left lane of traffic. Plaintiff testified "the next thing I know I felt, I just got hit. I felt a crunch and I was flying through the air. I felt my leg snap, excruciating pain. I flew in the air and when I landed, I just lost consciousness." Plaintiff indicated that he did not remember anything else until he awoke in the hospital. Plaintiff testified that he did not see the car that struck him, or any car, behind him when he looked over his shoulder prior to moving into the right lane. He testified that he hear a car horn before the impact.

Plaintiff further testified that he did not see the hole in the street prior to entering the right lane. He identified the hole from photographs admitted at trial and stated that the hole was located at 2169 Coney Island Avenue. He also stated that the location where he fell after being struck by the vehicle was 2163 Coney Island Avenue.

The only other witness to testify at trial with regard to the happening of the accident was Mr. Kenneth Pung, who witnessed the incident as he drove his car northbound on Coney Island Avenue. He saw plaintiff make a left turn from Avenue S onto Coney Island Avenue. The motor vehicle which was involved in the accident was being driven northbound directly in front of Mr. Pung prior to the accident. He stated that the bicyclist moved back and forth between the left and right lanes of the street and that the car appeared to be "following" the bicycle. The lane switching continued for about 5 or 6 seconds with approximately 3 or 4 lane changes. He believed that he said to his wife, who was a passenger in the car, "what is this guy doing?" in reference to the car's movement back and forth between the lanes just prior to the impact. A "fraction of a second" after making this statement, he saw the car hit the bicycle. According to Mr. Pung, after the bicycle was hit, plaintiff bounced off the [*3]windshield of the offending vehicle and fell to the side of the road.

Mr. Pung further testified that plaintiff appeared to be in control of his bicycle prior to the accident and was "upright" at the time of the accident. He also stated that plaintiff was traveling in the right hand lane just prior to the accident and that the offending vehicle was "very close . . . within one car length" away from plaintiff at that time. After the accident, Mr. Pung assisted the plaintiff, but did not observe any holes or cuts in the roadway. He noted that the offending vehicle continued down the street until it stopped at the far corner. Kuzin did not appear at the trial to testify.

With regard to plaintiff's injuries, the evidence adduced at trial established that

plaintiff suffered a cerebral contusion, two fractured ribs on the right side, a collapsed right lung, subluxation of the right clavicle in the shoulder and a compound fracture of the right tibia. He underwent multiple surgeries to repair the right tibia, including an intramedullary nailing of the tibia, a bone graft and removal of the intramedullar rod. He was released from the hospital in a wheelchair and his right arm was in a sling. He was unable to dress himself, bathe himself, prepare food for himself or use the bathroom by himself for a few months. For the first six months following the accident, he was in a prosthetic cast and could not place his right foot on the floor. Through physical therapy, he learned to walk again, first with a walker, then two crutches, then one crutch and finally with a cane. He was not able to walk without a cane until almost a year after the accident. He also had to wear a shoulder splint for six months and underwent physical therapy with regard to the pain and limitations he experienced.

Dr. Joseph Felice, treating physician for plaintiff's leg and shoulder injuries, testified that plaintiff suffered residual atrophy of his shoulder muscle, did not have normal shoulder function and would more than likely develop rotator cuff problems and arthritic problems in his shoulder joint in the future. With regard to plaintiff's leg, he stated that he would definitely expect plaintiff to develop arthritic problems with the ankle joint in his leg and that, as a result, "walking may become a problem" for plaintiff in the future. He also testified that future surgeries might be necessary to alleviate any pain and disability caused by the arthritis.

Plaintiff was 22 years old at the time of his injury. In 2002, eight years after the accident, he became a New York City police officer and continues to be employed in that capacity full-time. He testified at trial that he is not disabled, was found fit to perform all police duties and that, as a full-time employee, there was nothing that he was unable to do as a police officer.

Evidence was also presented at trial concerning the pothole which plaintiff testified that he rode into prior to his accident. Joseph Farahnik, an engineer, provided expert

testimony as plaintiff's witness with regard to the creation of the pothole. He opined that the pothole was created when a backfilling operation was not conducted properly. Specifically, he testified that the wearing surface was not installed properly and the excavation was not sealed adequately. The contour of the roadway was "crown up" but the cut in the roadway [*4]constituting the complained-of pothole was "crown down." He stated that the pothole was caused by excavation work done to the street which was subsequently improperly backfilled and surfaced. He also stated that the improper backfilling departed from reasonable engineering and construction standards in that the uppermost surface of the backfilled area must follow the contour of the street and, in this case, it did not, thereby causing the subject pothole. He further testified that it was his opinion that a shallow pothole existed at the time such work was completed.

With regard to when such backfilling work was performed, Mr. Farahnik testified that he had not witnessed such work and did not know when the work was either performed or completed. He also acknowledged that he did not actually observe the pothole but that he was shown photographs of the site which were taken shortly after the accident. He also stated that the pothole depicted in such photographs had, in part, resulted from a "settling" process which caused the pothole to sink further into the roadway over time and was a result of the initial negligent backfilling work.

In addition, a permit and "cut forms," which indicate the type of road work performed at a particular location, were admitted into evidence by plaintiff. These documents evidence that Remsen Repairs, a contractor working on behalf of the Department of Environmental Conservation, an agency of the City, opened the roadway in front of 2169 Coney Island Avenue in or about 1988.

DISCUSSION

On the instant motion to set aside the verdict, Kuzin argues that the jury verdict finding him 95% liable for plaintiff's injuries is against the weight of the evidence because plaintiff failed to proffer any evidence at trial that Kuzin was involved in the accident. Kuzin argues that the police report of the accident was not admitted into evidence and that the testimony elicited from both plaintiff and Mr. Pung failed to identify him as the operator of the motor vehicle which allegedly struck plaintiff. In addition, Kuzin argues that the jury award of $1,500,000 for past and future pain and suffering is excessive when compared to cases in which plaintiffs suffered injuries similar to those sustained by the plaintiff in the case at bar.

The City of New York similarly argues that the damages award in this case is excessive. In addition, it contends that the jury verdict finding the City 5% liable for

plaintiff's injuries was against the weight of the evidence because there was no proof that the City had written notice of the pothole in question, or that the City caused or created the pothole condition. It also argues that Mr. Farahnik's testimony was speculative and conjecture as he did not witness the alleged road excavation and backfilling, did not know which entity had performed the work and testified that the pothole which existed at the time of the accident may have had developed due to a "settling" process resulting from the original negligent backfilling. Moreover, it maintains that the permit and cut forms for Remsen Repairs, which were obtained pursuant to a FOIL request, may not represent the only [*5]roadway excavation work performed at the subject location prior to plaintiff's accident.

Plaintiff opposes the instant motion and cross-motion to set aside the verdict on the grounds that the jury verdict was not against the weight of the evidence and the jury award was not excessive when compared to cases in which plaintiffs sustained injuries similar to those suffered by the plaintiff herein. Plaintiff also cross-moves to increase the ad damnum clause in his complaint from $1 million to $1.5 million to reflect the amount of damages awarded to him by the jury.

It is well settled that "[a] jury verdict should not be set aside as against the weight of the evidence unless the verdict could not have been reached upon any fair interpretation of the evidence" (Enright v Bryne, 20 AD3d 549 [2005]; Garrett v Manaser, 8 AD3d 616, 616 [2004]; Klein v Vencak, 298 AD2d 434, 434 [2002]; Sullivan v Pampillonio, 288 AD2d 299, 299 [2001]; Devoe v Kaplan, 278 AD2d 734, 735 [2000]). Stated differently, "[a] verdict is not supported by legally sufficient evidence if there is no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial'" (Lallemand v Cook, 23 AD3d 533, 534 [2005], quoting Aprea v Franco, 292 AD2d 478 [2002], quoting Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). "The determination of the jury, which observed the witnesses and the evidence, is entitled to great deference" (Enright, 20 AD3d at 549; see also Evers v Carroll, 17 AD3d 629, 631 [2005]; Zweben v Casa, 17 AD3d 583, 583 [2005]; Lalla v Connolly, 17 AD3d 322, 323 [2005]; Rockowitz v Greenstein, 11 AD3d 523, 524 [2004]; Yau v New York City Transit Auth., 10 AD3d 654, 654 [2004], lv denied 4 NY3d 701 [2004]). Accordingly, "the discretionary power to set aside a jury verdict and order a new trial must be exercised with considerable caution" (Shachnow v Myers, 229 AD2d 432, 433 [1996]). Although the decision to set aside a verdict "involves balancing many factors . . . [t]he ultimate test is whether any viable evidence exists to support the verdict" (see Rugo v Osowiecky, 256 AD2d 839, 840 [1998]).

Here, the verdict reached by the jury was against the weight of the evidence and, therefore, the court is constrained to set such verdict aside and dismiss plaintiff's complaint. As an initial matter, there was no evidence presented at trial which would allow a jury to determine that a motor vehicle owned and operated by Kuzin came into contact with plaintiff's bicycle at the time and place of the subject accident. Plaintiff testified at trial that he was struck by a vehicle. However, plaintiff also testified that he did not observe a motor vehicle either behind him or in the right lane up until the time that he moved into that lane. Indeed, plaintiff was unable to identify either the offending automobile or its driver in that the accident rendered him unconscious. Although Mr. Pung witnessed the accident and described the vehicle involved in general terms, he also was unable to provide evidence as to the identity of the driver of the vehicle. Mr. Pung was unable to testify as to the license plate number of the vehicle or to provide any evidence with regard to the vehicle's registration. No documentary evidence, such as a certified license, registration or accident report, was admitted at trial. Also, although the pleadings were admitted into evidence at [*6]trial, the admissions contained within Kuzin's answer merely established that he owned and operated a motor vehicle bearing New York registration number C537KB. There was no admission in the pleadings with regard to either Kuzin's presence at the scene of the accident or the alleged contact between his motor vehicle and plaintiff or plaintiff's bicycle. Due to an absence of evidence that Kuzin owned or operated the vehicle which struck plaintiff or his bicycle, the jury's finding that Mr. Kuzin was 95% liable for the accident was against the weight of the evidence and must be set aside (see DeMarco v Frucchione, 67 AD2d 1055, 1055 [1979], lv dismissed 48 NY2d 881 [1979][finding no basis for disturbing the trial court's decision to set aside a verdict in favor of the plaintiff where there was no evidence in the trial transcript which identified the defendant as the driver of the offending vehicle]).

Plaintiff also argues at length that contact between a vehicle owned and operated by Kuzin and plaintiff's bicycle should be deemed admitted by Kuzin due to his allegedly improper objection to a notice to admit served upon him by plaintiff. The subject notice to admit requested the following admission from Kuzin:

That on or about August 23, 1994, there was contact between [a] bicycle and vehicle with New York registration number C537KB at 100 feet north of Avenue S and Coney Island Avenue in the County of Kings, City and State of New York on August 23, 1994.

Kuzin responded, in relevant part, as follows:

Plaintiff's request calls for an admission of ultimate issue of fact and, as such, is improper to respond to in a Notice to Admit.

It is well established that "[a] notice to admit may not be utilized to request admission of material issues or ultimate or conclusory facts, and is only properly used to eliminate from trial matters which are easily provable and about which there can be no controversy" (Samsung America v Yugoslav-Korean Consulting & Trading Co., Inc., 199 AD2d 48, 49 [1993]). A defendant may object, therefore, to notices to admit seeking admissions of

contested ultimate issues of fact which, in effect, would cause a defendant to entirely subvert or concede his or her defense (cf. Miller v Hillman Kelly Company, 177 AD2d 1036, 1037 [1991]). However, where a defendant does not formally object to such request, but instead entirely fails to respond or to seek relief in the form of a protective order within the requisite time period, the item in question shall be deemed admitted (see Kowalski v Knox, 293 AD2d 892, 892-893 [2002]).

Here, the objection to the notice to admit was proper and cannot be deemed an admission by Kuzin. The notice seeks an admission of an ultimate or conclusory fact which is an integral component of plaintiff's prima facie case and, therefore, is not the proper subject of a notice to admit. Kuzin did not ignore the notice to admit, but rather responded with an appropriate objection. Although plaintiff also argues that the subject fact should be deemed admitted because the objection to the notice to admit was signed by Kuzin's attorney, and not Kuzin, the court disagrees. The defendant was not obligated to answer such a [*7]request, which would have necessitated the subversion of his defense. Accordingly, the objection to the notice to admit was properly submitted by Kuzin's attorney. Although at least one court has suggested that an answer to a notice to admit signed by defendant's attorney, and not the defendant, is deemed a nullity (Elrac, Inc. v McDonald, 186 Misc 2d 830, 831-832 [2001]), that court did not address the situation where, as in this case, the attorney does not admit or deny the factual item for which an admission is sought, but rather interposes a legal objection to the notice to admit itself. Moreover, the court in Elrac pointed out that it was not prepared to state in its holding that "an attorney may never answer a notice to admit" (id. at 833). Accordingly, as the objection was properly signed by Kuzin's attorney the evidence before the jury did not establish that Kuzin or his vehicle were at the scene of the accident or that any contact between his vehicle and plaintiff or plaintiff's bicycle occurred. The jury verdict finding Kuzin 95% liable for plaintiff's injuries, therefore, was against the weight of the evidence.

The jury verdict finding the City 5% liable for plaintiff's injuries was also against the weight of the evidence. It is undisputed that there was no prior written notice to the City of the subject pothole. Accordingly, as there was no claim of a "special use", the jury would have had to determine that the City created the defect through an "affirmative act of negligence" in order to find the City liable for plaintiff's injuries (Bielcki v City of New York, 14 AD3d 301 [2005]; see also Daniels v City of New York, ___ AD3d ___, 2006 WL

1174137 (N.Y.A.D. 2 Dept.); Yarborough v City of New York, ___ AD3d ___, 2006 WL

1009589 (N.Y.A.D. 2 Dept.); Lopez v G & J Rudolph, Inc., 20 AD3d 511 [2005]).

At trial, plaintiff's expert testified that it was his opinion, upon observing photographs of the subject defect which were taken approximately three weeks after the accident, that the pothole in question was caused by the improper backfilling of a cut in the roadway. Although he attributed the creation of the pothole solely to the improper backfilling and did not identify any other cause for the pothole, such as weather conditions over time or wear and tear from traffic, he also testified that he did not observe the pothole immediately after the backfilling work was completed and did not know when such backfilling occurred. He further testified, however, that it was his opinion that a "shallow pothole" existed at the time the backfilling work was completed, although he did not personally observe such a hole and did not know how long the pothole which plaintiff rode into had existed at the site. He also stated that the pothole depicted in the photographs had "settled" over time as a result of the improper backfilling. In addition, the only documents admitted into evidence which establish that a cut was made in the roadway at the accident site show that such road work was completed approximately six years prior to the accident.

"[T]he affirmative negligence exception to the notice requirement [is] limited to work by the City that immediately results in the existence of a dangerous condition" (Bielecki, 14 AD3d at 301; see also Daniels v City of New York, ___ AD3d at ___ ). Accordingly, in cases where a negligent repair causes the dangerous condition to develop over time, written notice of such condition is required in order to impose liability on the municipality (id.). [*8]

In the instant case, there was no evidence offered at trial that road work performed by the City immediately created the pothole condition which contributed to plaintiff's injuries. Although plaintiff's expert testified that the pothole was the result of improper backfilling at the accident site, he did not know when such work was performed, and offered that the pothole he observed in photographs taken shortly after the accident revealed a pothole which had "settled" since the improper backfilling was completed. Thus, even if a "shallow

pothole" did exist at the subject location upon completion of the backfilling, and such backfilling was negligently performed, there is no evidence that the defect which allegedly contributed to the accident - namely a pothole which had settled subsequent to the backfilling and possessed dimensions and depth reflective of such changes over time - existed

immediately upon the completion of the backfilling. Moreover, no one, including plaintiff's expert, witnessed the pothole upon completion of the road work and the only evidence of such work are documents which establish that road work was performed at or near the accident site six years prior to the accident. Therefore, there is no evidence that the defect which

allegedly contributed to plaintiff's accident existed immediately upon completion of road work performed by the City as opposed to forming over time as a result of the "settling" process described by plaintiff's expert. Given the dearth of evidence that the City's affirmative act of negligence immediately created the subject pothole, the jury verdict finding it 5% liable for plaintiff's injuries was against the weight of the evidence.

As a result, Kuzin's motion and the City's cross-motion to set aside the jury verdict are granted and the complaint is dismissed.[FN1] Accordingly, plaintiff's motion to amend the ad damnum clause to conform to the jury award is denied as moot.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C.

Footnotes

Footnote 1:The court notes that defendants have also argued at length that the jury's damages award for past and future pain and suffering was excessive. However, as the court has set aside the verdict as against the weight of the evidence, it need not reach the issue of the appropriateness of said jury award.