Sanchez v New York City Tr. Auth.

Sanchez v New York City Tr. Auth. 2017 NY Slip Op 04899 Decided on June 15, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 15, 2017
Friedman, J.P., Richter, Moskowitz, Gische, Kapnick, JJ.
4039 304528/11

[*1]Nelson Sanchez, Plaintiff-Appellant,

v

New York City Transit Authority, Defendant-Respondent.

Burns & Harris, New York (Blake G. Goldfarb of counsel), for appellant.

Lawrence Heisler, Brooklyn (Timothy J. O'Shaughnessy of counsel), for respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered May 4, 2016, which granted defendant's motion to set aside the jury's verdict as against the weight of the evidence and direct that a new trial be held on the issue of liability, unanimously reversed, on the facts, without costs, and the motion denied.

In this action for personal injuries, plaintiff alleges that he fell while descending a covered and unlit exterior subway staircase owned by defendant. The jury found that defendant was negligent in its maintenance of the lighting on the staircase, that defendant's negligence was a substantial factor in causing plaintiff's injuries', and that plaintiff was not negligent.

The trial court erred in setting aside as against the weight of the evidence the jury's finding that plaintiff was not negligent (see Jones v New York©Presby. Hosp., ___ AD3d ___, 2017 NY Slip Op 03595 [1st Dept 2017]; Soler v Jersey Boring & Drilling Co., Inc., 143 AD3d 421 [1st Dept 2016]; see also CPLR 4404[a]). Although plaintiff conceded that he descended an unlighted staircase, the jury could reasonably have concluded that his decision to do so was not negligent, as plaintiff testified that he used the same staircase every night while coming home from work, and had in fact done so without incident on previous evenings when the lights were inoperative.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 15, 2017

CLERK