Cedano v City of New York

[*1] Cedano v City of New York 2009 NY Slip Op 52834(U) Decided on May 1, 2009 Supreme Court, Bronx County Hunter Jr., 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 This opinion is uncorrected and will not be published in the printed Official Reports.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, 2009
Supreme Court, Bronx County

Leonard Cedano, Plaintiff,

against

The City of New York, A & R Development Corp. and P & T Contracting Corp., Defendants.



14687/05



Attorney for Plaintiff: Leroi J. Andrews, Esq.

Attorney for Defendant City of New York: Adam L. Lerman, Esq.

Alexander W. Hunter Jr., J.

The motion by defendant, The City of New York (hereinafter "City") for an order staying the entry of judgment until sixty (60) days after the decision on all post-trial motions, is granted to the extent that the parties have consented to a thirty (30) day stay after the decision on the post-trial motion.

The City's further motion for a an order granting it judgment as plaintiff failed to establish a prima facie case and in the alternative, setting aside the verdict and granting a new trial, is denied in its entirety.

The trial of this matter involved personal injuries sustained by the plaintiff when he fell due to a depressed manhole cover in the crosswalk at Jerome Avenue and Clifford Place in Bronx County. The jury awarded the plaintiff damages in the amount of $250,000 for past pain and suffering and $300,000 for future pain and suffering over a period of 20.9 years.

The City submits a copy of the trial transcript and argues that the plaintiff failed to establish that the City affirmatively created the depressed manhole through repaving. The City contends that plaintiff's case was dependent on his expert's speculative theory that at some unknown time, the City must have performed inadequate paving. In reaching his conclusion,

Herbert Braunstein, relied upon photographs showing a depressed manhole. The City asserts that Mr. Braunstein stated his opinion that because the manhole is depressed, the City must have improperly resurfaced the roadway at some point in the past. The City argues that this testimony is speculation and conjecture. [*2]

Moreover, the City argues that Mr. Braunstein failed to establish that roadway resurfacing would have caused a depressed manhole. However, Mr. Braunstein could not testify as to when any resurfacing took place and thus his testimony that resurfacing would have immediately created the depressed manhole, is incredible as a matter of law. The City also contends that the its motion should be granted because plaintiff was unable to establish admissible evidence that the City last resurfaced the roadway in the area of the depressed manhole. Therefore, the jury was left to speculate that the City's purportedly negligent repaving created the defective condition.

Next, the City argues that plaintiff failed to establish that it created the depressed manhole through pothole repairs. The City first contends that a depressed manhole cannot be described as a pothole and plaintiff's attempt to characterize the manhole as a pothole is disingenuous. Additionally, the conclusion that a pothole repair possibly performed on April 25, 2003 or March 10, 2004, somewhere within the four corners of the intersection of Clifford and Jerome, was actually performed at the manhole cover that plaintiff identified as the location of his fall is speculative and against the weight of the evidence. The City also argues that plaintiff failed to establish that pothole repairs would have caused a depressed manhole.

Finally, the City argues that plaintiff failed to established that a depressed manhole caused his accident. The City asserts that plaintiff testified at trial that it was raining on the day of the accident. He was crossing the street and was looking straight ahead and did not see the depressed manhole before the accident. He could not even describe how the depressed manhole caused him to fall. The City asserts that on the photographs in evidence at trial, plaintiff did not mark the area of the manhole cover as the location of his fall but instead marked the paved and level roadway next to the manhole cover. Therefore, his testimony combined with the photographic evidence shows that plaintiff did not trip over an uneven manhole cover but instead slipped on the level roadway in the rain. In addition, the medical records showed that he told a nurse at the hospital that he slipped and fell on water in the street.

The City also moves to set aside the verdict and grant a new trial because the verdict sheet should have contained specific interrogatories. Moreover, the City asserts that the damages award of $550,000 deviates materially from what is reasonable compensation. In support of that contention, the City cites to a case from the Appellate Division, Second Department, from 1997, where a plaintiff sustained a fractured wrist and the award was reduced from $260,000 to $75,000. The city also cites to a case from 1997 from the Appellate Division, First Department, where a plaintiff fractured two bones in her right wrist and the award of $120,000 was considered reasonable. Other cases cited by the City involved fractures of the wrist and the awards, after being reduced ranged from $150,000 to $325,000. Based on the foregoing, the City moves to set aside the verdict and grant a new trial.

Plaintiff opposes the motion in its entirety. Plaintiff argues that two (2) eyewitnesses, Nicholas Gutierrez and Anselmo Mieses, testified that when plaintiff fell, they observed the depressed manhole cover that caused plaintiff to fall. Moreover, Mr. Mieses took photographs of [*3]the accident location and the defective condition that caused plaintiff to fall. Plaintiff asserts that the City did not introduce any witnesses to contradict the testimony of the plaintiff or the two eyewitnesses and that their testimony is more than enough to prove plaintiff's prima facie case.

Next plaintiff refutes the City's contention that plaintiff failed to establish that the City caused or created the condition that caused plaintiff's fall. Plaintiff refers to the testimony of Abraham Lopez, an employee form the New York City Department of Transportation ("DOT") wherein he stated that DOT received two (2) complaints from the DOT Maintenance Department about two (2) different potholes at Jerome Avenue and Clifford Place, prior to plaintiff's accident. Even though Mr. Lopez testified that the potholes found at the subject intersection were not in the crosswalk of Jerome Avenue and Clifford Place, he was not aware that the accident location was a "T" intersection with only one crosswalk. Moreover, he could not testify as to exactly where the potholes were that the records referred to in order to distinguish it from the location that plaintiff and the two (2) eyewitnesses testified about.

Plaintiff also refers to the testimony of its expert, Mr. Braunstein, wherein he states that the condition was caused and created by the City immediately after their work at the location due to the fact that the manhole cover was not raised to the proper level to be the same height as the surrounding asphalt resulting in a height displacement. Plaintiff argues that the DOT records referred to by Mr. Lopez and Mr. Braunstein's testimony raised questions of fact as to whether repairs of the pothole were negligent repairs of the depressed manhole cover performed prior to plaintiff's accident.

Plaintiff also argues that despite the City's attempts to characterize the accident as slipping on wetness due to rain, plaintiff clearly testified that he fell as a result of the difference in the height which he described as a hole underneath the level of the street by three (3) inches. Plaintiff argues that the City was given every opportunity to make legal and factual arguments, including its reference to the hospital records regarding plaintiff's slipping on water. However, the jury heard and examined the evidence and still came to its conclusions about fault and damages. Therefore, since the jury's decision was within its exclusive province, the verdict should not be disturbed.

Finally, with respect to damages, plaintiff argues that the jury's award does not materially deviate from what is reasonable compensation. Plaintiff distinguishes the cases referred to by the City and points out that in the case at bar, plaintiff sustained a serious wrist fracture that resulted in surgery, extensive and painful physical therapy and rehabilitation, missed time from work and continued pain and limitation in his right wrist. His pain and limitations are permanent as testified to by Dr. Gabriel Dassa and plaintiff points out that the City did not present any contradictory testimony on the issue of damages.

Plaintiff refers to one of the cases cited by the City from the Appellate Division, First Department, Cabezas v. City of New York, 303 AD2d 307 (1st Dept. 2003), where the plaintiff suffered injuries similar to that of plaintiff herein and the jury awarded a greater amount for pain [*4]and suffering than the jury in the case at bar. Plaintiff asserts that he agrees with the reasoning of the jury and the court but argues that the verdict in the instant action should not be disturbed and the City's motion should be denied in its entirety.

A trial court can set aside the jury's verdict and order a new trial "only if there was no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented.' The test...is not whether the jury erred in weighing the evidence, but whether any viable evidence existed to support the verdict." (citations omitted). Lolik v. Big V Supermarkets, Inc., 86 NY2d 744 (1995). Moreover, it is well established that the court's discretionary power pursuant to C.P.L.R. §4404, "must be exercised with caution since, in the absence of an indication that substantial justice has not been done, a litigant is entitled to the benefit of a favorable verdict. Fact-finding is within the province of the jury, not the trial court. [A] jury verdict in favor of a defendant should not be set aside unless the jury could not have reached the verdict on any fair interpretation of the evidence..' " (citations omitted). Brown v. Taylor, 221 AD2d 208 (1st Dept. 1995).

The City made an oral application before this court at the conclusion of the trial to set aside the jury's verdict on the ground that plaintiff did not establish a prima facie case. That application was denied by this court on the record and is denied again herein. This court finds that there was sufficient evidence presented to the jury to establish plaintiff's prima facie case and there was a valid line of reasoning that led to the conclusion reached by the jury in the case at bar.

With respect to the jury's award to the plaintiff for damages, courts have held that the amount of damages to be awarded for personal injuries is primarily a question of fact for the jury. Iazzetti v. City of New York, 216 AD2d 214 (1st Dept. 1995). In order to determine if an award is excessive, the standard that has been applied in the appellate courts and which has been applied at the trial court level as well is, "deviates materially from what would be reasonable." C.P.L.R. §5501( c). Thus, the amount of damages awarded by a jury may be set aside if it deviates materially from what would be reasonable compensation. See, Donlon v. City of New York, 284 AD2d 13 (1st Dept. 2001).

In Cabezas v. City of New York (supra), cited by both of the parties, where plaintiff's injuries were similar to the plaintiff's injuries herein, the jury awarded the plaintiff $450,000 for past pain and suffering, $450,000 for future pain and suffering, $50,000 for past medical expenses and $60,000 for future medical expenses. The trial court reduced the amounts to $150,000 for past pain and suffering and $175,000 for future pain and suffering. The amounts for past and future medical expenses were also reduced. The First Department stated, "We note defendant's failure to contravene plaintiff's medical evidence with expert evidence of its own...and find that neither the award of $450,000 for past pain and suffering nor that of $450,000 for 23 years of future pain and suffering deviates materially from what is reasonable compensation..." (citations omitted). Id. The court reinstated the jury's awards for past and future pain and suffering and past medical expenses. [*5]

In the case at bar, this court finds that the jury's award for past and future pain and suffering in the total amount of $550,000, does not deviate materially from what is reasonable compensation. Therefore, the City's motion to set aside the verdict and grant a new trial due to the excessiveness of the jury's award, is denied.

This constitutes the decision and order of the court.

Dated: May 1, 2009

J.S.C.