Lopez v Hage

[*1] Lopez v Hage 2012 NY Slip Op 52334(U) Decided on November 27, 2012 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 27, 2012
Supreme Court, Queens County

Adia Lopez, Plaintiff,

against

George Hage, Defendant.



27163/2009

Charles J. Markey, J.

In this slip and fall action the jury returned a verdict in favor of the defendant on the issue of liability and plaintiff's attorney, Susan H. Carman, Esq., moved to set the verdict aside as against the weight of the evidence pursuant to CPLR §4404(a). The Court directed both sides to submit their arguments in writing.

The jury found that the subject property was in an unsafe condition and that defendant had notice of the unsafe condition. However, the jury found that defendant's negligence was not a substantial factor in causing the accident

Plaintiff contends that based on the evidence on the record, the jury verdict is inconsistent. Plaintiff further contends that the read-back in response to the jury's request for further clarification on the term "substantial factor" created jury confusion on the issue of proximate cause relating to defendant's negligence.

Defendant opposes the motion contending that the jury verdict demonstrates that plaintiff did not provide enough evidence to establish proximate cause. Defendant further contends that plaintiff waived the right to object to the Court's read-back by failing to object prior to the verdict.

At the time of trial, plaintiff testified that there was a lack of lighting in the parking area; that she had reported the lighting condition prior to the date of the incident; and that the surface in the parking area was in an unsafe condition. Photographs depicting the condition of the parking area were also admitted into evidence. Plaintiff further testified that while traversing the parking lot, after approximately 10:00 p.m., she tripped over a piece of asphalt and fell, face forward, to the ground. Defendant testified that he had no notice of the lighting condition or the condition of the surface of parking lot however, he did not proffer any evidence to refute plaintiff's testimony that she tripped and fell over a piece of asphalt in the parking lot. [*2]

Based on the evidence placed on the record the jury determination that the parking lot was in an unsafe condition and that the defendant had timely notice of that condition is inconsistent with a finding that the unsafe condition was not the proximate cause of plaintiff's fall (see, Dellamonica v. Carvel Corp., 1 AD3d 311 [2nd Dep't 2003]; Gaudiello v City of New York, 80 AD3d 726 [2nd Dep't 2011]).

Moreover, notwithstanding the fact that both sides agreed to the Court's read-back and the jury verdict sheet, upon further review of the record the Court finds merit in plaintiff's contention that the supplemental instruction on substantial factor caused confusion for the jury.

Based on the foregoing, plaintiff's motion to set aside the verdict is granted. The Court directs the parties to appear in IAS Part 32 in the Long Island City courthouse to select a jury at 9:30 a.m. on January 15, 2013.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

November 27, 2012