Genao v New York City Tr. Auth.

[*1] Genao v New York City Tr. Auth. 2010 NY Slip Op 51340(U) [28 Misc 3d 133(A)] Decided on July 22, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 22, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2009-1384 Q C.

Ana Genao, Respondent,

against

New York City Transit Authority, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered June 16, 2008. The judgment, upon a jury verdict, found in favor of plaintiff on the issue of liability.

ORDERED that the judgment is affirmed without costs.

Plaintiff commenced this action to recover damages for personal injuries sustained when she slipped and fell while descending a flight of steps leading from a subway station. She contended that the surface traction on one of the steps had worn away, causing her to slip. Following a trial on the issue of liability, the jury returned a verdict in favor of plaintiff, finding no comparative negligence on her part. Defendant's motion to set aside the verdict was denied, and this appeal from the judgment ensued. A verdict should not be set aside as against the weight of the evidence "unless the jury could not have reached the verdict on any fair interpretation of the evidence" (Nicastro v Park, 113 AD2d 129, 134 [1985] [internal quotation marks omitted]), and "great deference must be given to the fact-finding function of the jury" (id. at 136). The question of whether the step upon which plaintiff fell was in a dangerous condition and was the cause of plaintiff's slip and fall came down to the jury's resolution of the credibility of the testimony of the witnesses, which the jury was in the best position to resolve, since it had an opportunity to assess the witnesses. In reviewing the record to ascertain whether the verdict was based upon a fair interpretation of the evidence, we find that the record contains sufficient evidence from which a rational jury could have concluded that plaintiff slipped and fell on the step because the surface traction on the step had worn away, that the step was in a dangerous condition, which defendant knew or should have known about and failed to correct, and that defendant's failure to do so was a substantial factor in bringing about the accident. The jury could have further found that plaintiff's conduct was not a contributing factor in bringing about [*2]the accident. Thus, contrary to defendant's contention, it was not unreasonable or irrational for the jury to have found that defendant alone was responsible for the accident, and it cannot be said that the jury's verdict in favor of plaintiff on the issue of liability was not supported by sufficient evidence or that it should be set aside as against the weight of the evidence.

Defendant contends that the cumulative effect of plaintiff's counsel's allegedly inappropriate remarks made throughout the trial prevented the jury from properly evaluating the evidence, and deprived defendant of a fair trial. As defendant did not object at trial to many of the comments to which it now points as improper, it failed to preserve for this court's review its contentions with respect to those statements (see Lind v City of New York, 270 AD2d 315 [2000]). With respect to the comments to which defendant did object, it is our view that they did not deprive defendant of a fair trial, as they do not appear to have diverted the jury from considering the issues to be determined (id.; see also Ritz v Lee, 273 AD2d 291 [2000]). Furthermore, the Civil Court did not improvidently exercise its discretion in denying defendant's motion for a mistrial after plaintiff's counsel referred to the prior denial of defendant's motion for summary judgment dismissing the action, particularly in light of the Civil Court's offer of a curative instruction to alleviate any prejudice which may have resulted from plaintiff's counsel's remark, which offer was rejected by defense counsel.

Defendant's remaining arguments, including those with respect to the Civil Court's failure to give a "trivial defect" instruction to the jury, are either not preserved or without merit. Accordingly, the judgment is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 22, 2010