Marsha Davis v City of New York

Davis v City of New York 2005 NY Slip Op 02214 [16 AD3d 541] March 21, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 18, 2005

Marsha Davis et al., Respondents,
v
City of New York, Appellant.

—[*1]In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Kings County (Rosenberg, J.), dated September 30, 2003, as, upon so much of a jury verdict as was on the issue of liability, and upon the denial of that branch of its motion pursuant to CPLR 4404 (a) which was to set aside that portion of the jury verdict as against the weight of the evidence, adjudged it 100% at fault in the happening of the accident.

Ordered that the judgment is reversed insofar as appealed from, on the law, that branch of the defendant's motion pursuant to CPLR 4404 (a) which was to set aside the liability portion of the jury verdict as against the weight of the evidence is granted, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of liability only, with costs to abide the event.

That portion of the jury verdict which found the defendant 100% at fault in the happening of the accident was against the weight of the evidence (see CPLR 4404 [a]; Sinagra v City of New York, 287 AD2d 447 [2001]; Nicastro v Park, 113 AD2d 129 [1985]). The defendant does not challenge the damage award. Accordingly, the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of liability only. [*2]

The defendant's remaining contention is without merit. Prudenti, P.J., Cozier, Ritter and Spolzino, JJ., concur.