Togut v Riverbay Corp.
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Togut v Riverbay Corp. 2011 NY Slip Op 34072(U) December 21, 2011 Supreme Court, Bronx County Docket Number: 302596/08 Judge: Mary Ann Brigantti-Hughes Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] PILED Dec 29 2011 Bronx County Clerk ~REM COUN Il - ,_ 1-11 RS':!-'',,..."" ~ONX COURT ST ATE OF NEW YORK OF BRONX TRIAL TERM - PART 15 P SENT: Honorable Mary Ann Brigantti-Hughes -----------------------------------------------------------------------){ Albert Togut, as Chapter 7 Trustee for Berthenia Singleton, Plain ti ft: -against- ·., ' DEC 2 9 £Urt .. ,, .... . ' DECISION I ORDER Index No. 302596/08 RIVERBA Y CORPORATION, Defendant. -----------------------------------------------------------------------){ The following papers numbered 1to4 read on the below motions noticed on August 23, 2011 and duly submitted on the Part IA 15 Motion calendar of Papers Submitted Numbered Defs. Notice of Motion, Exhibits Pl. Affirmation in Opposition, Exhibits 1,2 3,4 In an action seeking damages for personal injuries resulting from an alleged trip-and-fall accident, defendant Riverbay Corporation (hereinafter "Riverbay") moves post-trial for an Order dismissing the complaint of plaintiff Albert Togut, As Chapter 7 Trustee for Berthenia Singleton (hereinafter "Plaintiff') or setting aside the jury verdict and ordering a new trial pursuant to CPLR 4404(a). L Factual and Procedural History On November 4, 2003, Plaintiff allegedly tripped and fell on a defect located on Defendant's property, on a bright and sunny day. As a result of the accident, she allegedly suffered a torn meniscus of the left knee. Plaintiff had suffered the same injury as a result of an accident some 8-10 years earlier. At trial, the jury considered photographs of the accident, Plaintiff's testimony, and the testimony of both parties' medical experts. After two and one-half weeks of trial, the jury deliberated for 30 minutes and returned a verdict for Plaintiff in the total amount of $425,000. Defendant now makes the instant motion. Plaintiff opposes. [* 2] FILED Dec 29 2011 Bronx County Clerk II. Standard of Review Under CPLR 4404(a), The court may set aside a jury verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court. For a court to decide that a jury verdict is not supported by legally sufficient evidence, there must be no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499 (1978); Nicastro v. Park, 113 A.D.2d 129, 132 (2 11 <1 Dept. 1985). Any defect in the plaintiffs case can be cured by the evidence presented on the defendants case in chief Id. In determining whether a plaintiffs initial burden has been established, the Supreme Court is obliged to consider all of the evidence, including the proof adduced by the defendants which cures any defects in the plaintiffs case. See Bopp v. New York Elec. Veh. Tramp. Co., I 77 N. Y. 33, 35 (1903 ). In considering such a motion, "the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant" (Szczerbiak v Pilat, 90 NY2d 553, 556 ( 1997) III. Analysis First, Defendant argues that the evidence failed to show that there was an actionable · defect. Defendant asserts that, at trial, Plaintiff failed to demonstrate the depth, width, or length of the alleged defect. Defendant further argues that the alleged defect in this case was not dangerous or hazardous as a matter of law. Rather, it was "trivial" and did not constitute a "trap or snare", as required to attach landowner liability. Spiegel v. Vanguard Construction and Development Co., 50 A.D.3d 387 ( !81 Dept. 2008). In support, Defendant attaches photographs of the accident location and defect. Defendant also attaches the transcript of Plaintiff's trial testimony, where she '"failed to state the alleged depth, width, or length of the defect." Plaintiff 2 [* 3] FILED Dec 29 2011 Bronx County Clerk also testified that the accident occurred on a "bright, sunny day" and the alleged defect would have been "open and obvious to any one paying attention". Defendant has not established as a matter of law that there is ''no valid line of reasoning" or "permissible inference" which could have led rational persons to conclude that there was a hazardous condition in this case. While Defendant argues that the dimensions of the alleged defect were not established, there is no "minimum" actionable defect dimension. Rather, as stated by Defendant, the inquiry is whether the defect "had the characteristics of a trap or a snare'' such as an "edge''. Spiegel, supra., Glickman v. City o{New York, 297 A.D.2d 220 (1st Dept. 2002). In this matter, Plaintiff testified that the alleged hazard was not a "gradual, shallow depression" but rather a "space" or "drop" where the courtyard and sidewalk met, and her foot got "caught". The photographs depicted a "raised edge" that could render the defect "nontrivial". Glickman, supra. The evidence established a question for the jury as to whether the height differential constituted a tripping hazard. Moreover, although there were no adverse lighting conditions at the time of the accident, the fact that it was in an area traveled by pedestrians who are generally expected to be looking ahead, instead of down at the flooring. rendered the alleged defect non-trivial. George v. New York City Transit Authority, 306 A.D,2d 160 (1st Dept. 2003 ). Whether a condition is "open and obvious" is generally a jury question, and a court should only determine that a risk was open and obvious as a matter of law where the facts compel such a conclusion. Westbrook v. WR Activities-Cabrera Markets, 5 A.D.3d 69 (l ' 1 Dept. 2004). Even visible hazards do not :aecessarily qualify as open and obvious. Id. The relevant inquiry is whether the condition ''could not reasonably be overlooked by anyone in the area whose eyes were open." Liriano v. Hobart Corp., 92 N.Y.2d 232 (1998). That is not the case in this matter. Here, even Defendant's own witness testified that he would have put a "cone" or a "warning sign" near the condition until a repair was done, in order to "make sure nobody gets hurt". The evidence presented at trial presented a question of fact for the jury to consider, and reasoanbly supported the jury's ultimate conclusions. Second, Defendant argues that Plaintiff failed to prove that her left knee meniscus injury was from the subject accident and not from a prior accident where she also sustained a left knee 3 [* 4] FILED Dec 29 2011 Bronx County Clerk '.. meniscus injury. Defendant states that "Plaintiffs medical expert testified that her meniscus injury was from the subject accident but failed to explain or even address the prior meniscus injury." Defendant, however, does not include a transcript of the medical expert's trial testimony. Accordingly, this branch of Defendants' motion is procedurally defective, as this Court cannot now make an informed decision on its merits. McCarthy v. 390 Tower Assoc, LLC, 9 Misc.3d 219 (Sup. Ct., N. Y. Cty, 2005). Third, Defendant argues that the jury "rushed the deliberation" and therefore the verdict must be set aside, if not dismissed. Again, Defendant provides no transcripts su(>stantiating any of the events which are detailed in its attorney affirmation. Defendant does not substantiate its claims that the jurors were ''rushing" to come to verdict when they did so within thirty (30) minutes of being charged. Defendant cites no case law that establishes a minimum reasonable time a jury may consider evidence before rendering a verdict. It would be patently improper to set aside a jury verdict based on Defendant's unsubstantiated allegations herein. IV. Conclusion Accordingly. it is hereby ORDERED, that Defendant's motion to dismiss or set aside the jury verdict pursuant to CPLR 4404(a) is hereby DENIED. This constitutes the Decision and Order of this Court. Dated: December 1-I , 2011 Hon. Mary Ann Brigantti-Hughes, J.S.C. 4
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