Moazzem v Port Auth. of N.Y. & N.J.

[*1] Moazzem v Port Auth. of N.Y. & N.J. 2005 NY Slip Op 50253(U) Decided on March 2, 2005 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 2, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
2004-417 Q C

M.D. Moazzem, Respondent,

against

Port Authority of New York and New Jersey, Appellant.

Appeal by defendant from an order of the Civil Court, Queens County (A. Agate, J.), dated March 27, 2003, which, after a jury trial on the issue of liability, granted plaintiff's motion to set aside the verdict in favor of defendant, awarded judgment to plaintiff on the issue of liability, and directed a trial on the issue of damages.

Order unanimously reversed without costs, plaintiff's motion to set aside the jury verdict denied, verdict reinstated, and matter remitted to the Civil Court for entry of an appropriate judgment.

Plaintiff brought the instant action after he allegedly tripped and fell in a hole on an asphalt walkway near the American Airlines terminal at LaGuardia Airport. Following a trial on the issue of liability, at which plaintiff claimed that defendant was negligent in failing to repair the hole, and defendant claimed not to have had any notice of the existence of the hole, the jury returned a verdict in favor of defendant, finding that defendant was negligent, but that its negligence was not a substantial factor in causing the accident. The trial court granted plaintiff's motion to set aside the jury's verdict as contrary to the weight of the evidence, awarded judgment to plaintiff on the issue of liability, and directed a trial on the issue of damages.

A jury verdict should not be set aside as against the weight of the evidence unless the evidence so preponderates in favor of the moving party that the verdict could not have been reached upon any fair interpretation of the evidence (see Nicastro v Park, 113 AD2d 129 [1985]). When considered in light of this standard, and given the fact that great deference must be [*2]accorded to the fact-finding function of the jury, it is our opinion that the jury verdict in favor of defendant should not have been disturbed. The court's discretion to set aside a verdict "is at its broadest when it appears that the unsuccessful litigant's evidentiary position was particularly strong compared to that of the victor" (Nicastro v Park, 113 AD2d at 136), and in the instant case, it cannot be said that plaintiff's evidence on the issue of liability was particularly strong. Although his witness saw plaintiff fall, he did not see the cause thereof, and never testified that it was the defective condition which caused the accident. Even plaintiff himself testified that he did not actually see his foot go into the "hole" and did not see said hole until after his fall. It may be that the jury believed that plaintiff's fall was not caused by the hole at all. In this case, it cannot be said that the issues of defendant's negligence and causation were "so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause" (Rubin v Pecoraro, 141 AD2d 525, 527 [1988]). Even assuming this were the case, the appropriate procedure would have been for the court below to have ordered a new trial instead of directing a verdict in favor of plaintiff (see CPLR 4404 [a]).

Accordingly, the order of the court below should be reversed and the verdict in favor of defendant on the issue of liability should be reinstated.
Decision Date: March 02, 2005