Reyes v City of New York

[*1] Reyes v City of New York 2008 NY Slip Op 51726(U) [20 Misc 3d 1134(A)] Decided on April 4, 2008 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 4, 2008
Supreme Court, Bronx County

Gladys Reyes, Plaintiff

against

City of New York, Defendant



20261/97



APPEARANCES:

For Plaintiffs

Lawrence P. Biondi Esq.

81 Main Street, White Plains, NY 10601

For Defendants

Marti Hirst, Assistant Corporation Counsel

Brian Middlebrook, Assistant Corporation Counsel

198 East 161st Street, Bronx, NY 10451

Lucy Billings, J.

I presided at the trial of this action before a jury November 14-27, 2006. On November 27, 2006, the jury rendered a verdict awarding plaintiff $160,000.00 for past medical expenses, $2,000,000.00 for past pain and suffering, and $2,000,000.00 for future pain and suffering over 10 years. Defendant moves for an order setting aside the jury's verdict on defendant's liability for plaintiff's injuries and dismissing the action, based on insufficiency of the evidence. For the reasons explained below the court denies defendant's motion. C.P.L.R. § 4404(a).

I.FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff testified that a broken curb dividing the sidewalk and the roadway at Zerega and Westchester Avenues, in Bronx County, caused her to stumble off the curb and fall into a hole in the roadway abutting the curb. The hole was 20-24 inches wide and filled with water and garbage, obscuring the depression of 10-12 inches.

Plaintiff's notice of claim alleged that defendant's negligent maintenance and construction of a street, which was "broken with . . . cracks," with a "hole . . . by the sewer opening," caused her injury. Aff. in Opp'n of Lawrence P. Biondi, Ex. C. Her complaint alleged defendant's "[a]ctual and constructive notice," id., Ex. D ¶ 8, of a "roadway . . . being broken, with . . . cracks protruding from the ground," that caused her injury. Id. ¶ 6. Her bill of particulars alleged defendant's "[a]ctual notice . . . in that defendant . . . created said condition," id., Ex. F ¶ 22, and "constructive notice . . . in that said condition existed for such a reasonably long period . . . that the defendant . . . should have known of its existence and . . . prevented same." Id. ¶ 23.

Before opening statements, plaintiff moved to amend her notice of claim and pleadings to allege more specifically defendant's creation of the condition and receipt of prior written notice regarding the condition. The court permitted these amendments, finding both were encompassed [*2]within the term "actual notice" and, based on disclosure that focussed on specific prior work by defendant at the injury site and on a specific written notice transmitted to defendant that it relied on in preparation for trial, the amendments did not prejudice defendant. After all, defendant's creation of the condition or receipt of prior written notice regarding the condition are the only possible bases on which plaintiff could sustain her action and did not constitute new, surprise theories of liability. Whalen v. Kawasacki Motors Corp., 92 NY2d 288, 293 (1998); Zaid Theatre Corp. v. Sona Realty Co., 18 AD3d 352, 354-55 (1st Dep't 2005); Dauria v. City of New York, 178 AD2d 289, 290 (1st Dep't 1991). See Kushner v. City of Albany, 7 NY3d 726, 727 (2006); Kiernan v. Thompson, 73 NY2d 840, 841-42 (1988); Ocasio v. City of New York, 28 AD3d 311 (1st Dep't 2006); Scavuzzo v. City of New York, __ AD3d __, 850 NYS2d 526, 528 (2d Dep't 2008). Since the court at the close of the evidence dismissed plaintiff's claim insofar as it relied on defendant's creation of the condition, Yarborough v. City of New York, 10 NY3d 726, 728 (2008); Oboler v. City of New York, 8 NY3d 888, 889-90 (2007); Kushner v. City of Albany, 7 NY3d at 727; Bielecki v. City of New York, 14 AD3d 301, 302 (1st Dep't 2005), defendant's challenge to that amendment is academic.

II.THE WRITTEN NOTICE

The prior written notice served on defendant, which it does not deny, was a Big Apple Map with a legend depicting a mark that designates an "extended section of broken, misaligned or uneven curb" where plaintiff fell, admitted in evidence without objection. Ex. 5. The map legend includes only this designation, yet a witness called by plaintiff, Ralph Gentles, testified that the surveyors or map markers used that mark to designate a hole abutting a curb as well. If a hole did not abut a curb, the map markers used a different designation. While defendant now expresses surprise about this witness, defendant never sought to depose a witness from the surveying entity, Sanborn Map Company, either before or after plaintiff disclosed her intention to call Gentles at trial. The only objection defendant posed to his testimony concerning the use of that mark was to clarify that it was according to Sanborn Map Company's practice and procedure. Transcript of Proceedings at 301, 313, 320-22, 328-29.

Nevertheless, when the court instructed the jury to determine whether defendant received written notice of the condition that caused plaintiff's fall and injury, the only written notice in evidence to which the jury could refer was the map and legend, which of course was not supplemented by Gentles's commentary. This framework gave defendant free rein to argue to the jury that the map and legend did not provide notice of the hole plaintiff fell into.

Unquestionably, plaintiff must prove notice of the specific condition that caused her injury, not merely a similar or nearby defective condition. Leary v. City of Rochester, 67 NY2d 866, 867 (1986); Roldan v. City of New York, 36 AD3d 484 (1st Dep't 2007); Hunter v. City of New York, 23 AD3d 223, 224 (1st Dep't 2005); Belmonte v. Metro Life Ins. Co., 304 AD2d 471, 474 (1st Dep't 2003). Based on plaintiff's testimony, however, that the broken curb caused her to stumble off the curb into a hole abutting the curb, where she fell and incurred her injuries, to which defendant did not object, Tr. at 443-46, 529-30, 535, 556-58, 562-64, the issue presented to the jury was not simply whether defendant received prior written notice of a hole in the roadway. The issue for the jury's determination was whether defendant received prior written notice of the condition that caused plaintiff's fall and her injury, which consistently was depicted as broken, cavernous pavement abutting the curb. Where as here the parties dispute the precise location of the defective condition that caused plaintiff injury and whether the Big Apple Map designated a defect at that location, these questions are for the jury to resolve, as it did here. Vasquez v. City of New York, 298 AD2d 187 (1st Dep't 2002); Johnson v. City of New York, 280 AD2d 271, 272 (1st Dep't 2001); Almadotter v. City of New York, 15 AD3d 426, 427 (2d Dep't 2005); Quinn v. City of New York, 305 AD2d 570, 571 (2d Dep't 2003).

The only notice defendant received was the map and its legend, which is limited to its terms and does not include any embellishment by Gentles, which defendant did not receive. The map showed a "broken, misaligned or uneven curb." A curb is the vertical edge between the higher level of the sidewalk and the lower level of the roadway. See, e.g., NY Veh. & Traf. [*3]Law § 111. The curb is the edge of both the sidewalk and the roadway and thus, necessarily, includes at least minimal pieces of the sidewalk surface that extends horizontally in one direction and the roadway surface that extends horizontally in the opposite direction. Therefore, where a broken, misaligned, or uneven roadway surface abuts the vertical surface of the curb, that abutting edge of the roadway is also part of the curb, just as is a broken, misaligned, or uneven edge of the sidewalk surface abutting the vertical surface of the curb.

In plaintiff's case, the broken, uneven upper part of the curb, at the edge of the sidewalk level, caused plaintiff to stumble into the broken, uneven lower part of the curb, at the edge of the roadway level. Thus when she pleaded a "hole on the public roadway," this hole not only was where the broken, uneven sidewalk part of the curb caused her to fall and sustain injury, but the hole, a broken, uneven part of the roadway, insofar as it extended up against the curb, also was part of the broken, uneven curb. Biondi Aff., Ex. F ¶ 15. Consistent with her pleadings, her expert in engineering observed that the defective area was "a curb cut." Tr. at 464.

Moreover, in response to plaintiff's Notice to Admit, defendant admitted prior receipt of the map and legend claimed to designate the condition that caused plaintiff's fall. Biondi Aff., Exs. G and H. See Laham v. Chambi, 299 AD2d 151, 152 (1st Dep't 2002); Abdelnabi v. New York City Tr. Auth., 273 AD2d 114, 115 (1st Dep't 2000). Further, defendant itself produced the map and legend in response to plaintiff's request for relevant records, along with a deposition witness who testified about receipt of prior written notice of the condition, specifically the map and legend. Biondi Aff., Ex. I at 8-11. See Tekni-Plex, Inc. v. Astro-Valcour, Inc., 293 AD2d 256, 258 (1st Dep't 2002); Uzcha v. New York City Health & Hosps. Corp., 288 AD2d 48 (1st Dep't 2001). In sum, this notice was the very basis for plaintiff's action to which defendant prepared its defense.

Nowhere has defendant articulated how it then was prejudiced because plaintiff relied on this map as defendant's prior written notice of the condition that caused her fall and also alleged that a hole in the roadway caused her injury. As discussed above, particularly if her pleadings are construed liberally, these allegations are not necessarily inconsistent. In fact, this rendition is her consistent, uncontradicted version of what occurred, to which she testified without objection by defendant.

III.CREATION OF THE DEFECTIVE CONDITION

Given the dismissal of plaintiff's claim based on defendant creating the defective condition, the only remaining issue related to this claim is whether the testimony of plaintiff's expert in engineering, Daniel Burdett, regarding defendant's inadequate repair that led to the defective condition's formation, unduly influenced the jury's conclusions. The court permitted Burdett to testify after determining, through a hearing outside the jury's presence, that his proffered testimony fell within permissible bounds, indicating that defendant's work created the hazardous condition immediately upon completion of the work, rather than simply resulting in the surface's deterioration over extended use. Then, he testified that: "The repair was defective immediately . . . . ," tr. at 362, and "immediately, a hole would start from day one," analogizing, "if you don't build a foundation correctly and you add the rest of the house, from day one that house is going to sink." Id. at 363. The "result is an area that's sinking from day one," id. at 366, and "can't contain the strength of people walking on it

. . . . from day one." Id. at 370.

When Burdett testified before the jury, however, perhaps because the questions differed somewhat, he changed his testimony, acknowledging that the hazardous condition developed through use over a longer period, enough to veer outside permissible bounds. Yarborough v. City of New York, 10 NY3d at 728; Oboler v. City of New York, 8 NY3d at 889-90; Ocasio v. City of New York, 28 AD3d 311; Bielecki v. City of New York, 14 AD3d at 302. His testimony on this issue was limited to explaining that the area where plaintiff fell had depressed over time, 12 inches from defendant's last repair there March 6, 1996, to plaintiff's fall October 13, 1996, for example: an average of approximately 0.05 to 0.06 inches per day. QWhen would a visible defect be noticeable . . . after this repair was done?[*4]AIt could be within days, it depends [on] the load that's on there. If a vehicle went over it, parked the car, you would notice it right away. If it was only pedestrians, it would take longer, two weeks, three weeks, it depends on the traffic[;] five days, seven days, it is a short period of time.

The moment they leave someone walks on it that would start the depression, when would you notice an inch or two or three inches probably several weeks over a period of time.

. . . .

Yes, visible defect would mean when people started walking on it or equipment or hand trucks[;] it is a curb cut whenever a load is applied that depression would start, when would it be noticeable like an inch or two, that could take a couple of days depending on the load directly, several days.

. . . Does the first person who walks across it after they leave cause a depression, probably not, does the second person, it may, does the third as people walk across it you find the depression . . . .

Id. at 462-65.

. . . [W]e know from day one this is going to sink, how fast, depends on the . . . . load, compression, how many people walk on it if cars go over it . . . .

. . . .

We know it is dangerous because we know the results of the hole, we know that it sank . . . .

Id. at 482-83.

While defendant insists that Burdett thus painted it as negligent and worthy of criticism, after the court narrowed plaintiff's claims, the jury was never asked to determine whether defendant negligently created the defective condition. The negligence claim on which the jury focussed was whether, later, after the defective condition formed, and after defendant received notice of a defective condition in the area, (1) the notice was of the condition that caused plaintiff's fall and injury, and (2) defendant then failed to repair that condition.

Moreover, as soon as the court received a transcript of Burdett's testimony to ensure that it did not include the necessary elements to prove creation of the defect, the court specifically instructed the jurors that it struck Burdett's testimony of how the defect formed and defendant's role in that regard. They were to dismiss that testimony from their minds and not consider any of it. Before giving these instructions, the court solicited defendant's proposal for them, but it was not forthcoming. Neither did defendant request that the court give these instructions any earlier than it did. Therefore defendant's claim at this stage that the instructions were inadequate in content and too late rings hollow.

Nor does defendant now indicate why Burdett's stricken testimony was more prejudicial because it was not struck immediately after he testified, but was struck at the close of the evidence and after defendant presented a witness, its own employee, not a retained expert, who undermined Burdett's testimony. Although Burdett's testimony lost considerable significance when the court struck the central substance, much of his testimony describing this condition and the hazard it posed, based on photographs in evidence, remained relevant. His testimony as a whole, moreover, was not so long as to eclipse all the other evidence about the condition. His testimony regarding the evolution of the hazardous condition was limited to the extent set forth [*5]above. Insofar as his testimony was unduly extended, it was through defendant's cross-examination, which consumed almost 75% of the questioning to him, mainly regarding other issues. Finally, while Burdett may not have been competent to testify that the curb and roadway condition in fact caused plaintiff's fall or injuries, defendant posed no objection to such testimony. Id. at 465-66.

IV.THE JURY'S CONCLUSION

The court may not set aside the verdict based on legal insufficiency of the evidence unless no valid line of reasoning and permissible inferences would lead rational jurors to the conclusion they reached. Stephenson v. Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 271-72 (2006); Cohen v. Hallmark Cards, 45 NY2d 493, 499 (1978); Sow v. Arias, 21 AD3d 317 (1st Dep't 2005). Legal sufficiency of the evidence is a question of law for the court. See Cohen v. Hallmark Cards, 45 NY2d at 498; Sow v. Arias, 21 AD3d 317. Setting aside a verdict based on legal insufficiency of evidence results in a judgment of dismissal. Cohen v. Hallmark Cards, 45 NY2d at 498; Smith v. Au, 8 AD3d 1, 2 (1st Dep't 2004).

As set forth above, plaintiff's evidence, at minimum, raised factual questions whether defendant received prior written notice, through the Big Apple Map and legend, of the curb condition that caused plaintiff's fall and injury. Once raised, these questions were to be resolved by the jury, which was free to reject defendant's evidence and arguments, that the curb condition designated on the map did not provide notice of the condition that caused plaintiff's fall and injury, and accept plaintiff's evidence and arguments, that the designation on the map was what caused her fall or injury. The court's instructions to the jury focussed it on this determination and away from any determination whether defendant negligently created or caused the curb condition in the first instance. Therefore the court denies defendant's motion to set aside the verdict on defendant's liability, direct a judgment in defendant's favor, and dismiss plaintiff's action. C.P.L.R. § 4404(a).

V.INTEREST

C.P.L.R. § 5004 provides that interest on the judgment for damages "shall be a the rate of nine per centum per annum, except where otherwise provided by statute." New York General Municipal Law § 3-a(1) further provides that "the rate of interest to be paid by a municipal corporation upon any judgment or accrued claim against the municipal corporation shall not exceed nine per centum per annum." See Rodriguez v. New York City Hous. Auth., 91 NY2d 76, 79-80 (1997). Since C.P.L.R. § 5004 is consistent with General Municipal Law § 3-a and contains no exceptions, defendant has failed to present any reason to reduce the 9% rate applicable to the judgment in this action. Rodriguez v. New York City Hous. Auth., 91 NY2d at 80-81; Sassoonian v. City of New York, 261 AD2d 319, 320 (1st Dep't 1999); Abiele Contracting, Inc. v. New York City School Constr. Auth., 6 AD3d 366, 367 (2d Dep't 2004); Conte v. City of New York, 300 AD2d 430, 431 (2d Dep't 2002).

VI.DISPOSITION

Defendant's motion for a hearing on plaintiff's collateral sources is unsupported by any evidence that plaintiff had or has collateral sources for her past medical expenses that are supported by the evidence. C.P.L.R. § 4545(c); Oden v. Chemung County Indus. Dev. Agency, 87 NY2d 81, 87-88 (1995); Hayes v. Normandie LLC, 306 AD2d 133, 134 (1st Dep't 2003); Krum v. Green Is. Constr. Co., 249 AD2d 730, 731 (3d Dep't 1998). See Fisher v. Qualico Contr. Corp., 98 NY2d 534, 539 (2002); Brewster v. Prince Apts., 264 AD2d 611, 618 (1st Dep't 1999); Green v. Frontier Cent. School Dist., 214 AD2d 947, 948 (4th Dep't 1995); Greenspar v. East Nassau Med. Group, 204 AD2d 273, 274 (2d Dep't 1994). More fundamentally, defendant failed to plead collateral source payments pursuant to C.P.L.R. § 4545(c) as an affirmative defense, as required for defendant to seek an offset for such payments. Biondi Aff., Ex. E; C.P.L.R. § 3018(b); Wooten v. State of New York, 302 AD2d 70, 73-74 (4th Dep't 2002). Therefore the court denies that relief and, on the grounds set forth, denies defendant's motion to set aside the jury's verdict on defendant's liability, C.P.L.R. § 4404(a), and to reduce the rate of interest below 9% per year, C.P.L.R. § 5004; NY Gen. Mun. Law § 3-a, which shall run from the [*6]date of the verdict on liability, November 27, 2006. C.P.L.R. §§ 5001(b), 5002; Rohring v. City of Niagara Falls, 84 NY2d 60, 68-69 (1994); Bermio v. Atakent, 241 AD2d 235, 247 (1st Dep't 1998). This decision constitutes the court's order.

DATED: April 4, 2008

_____________________________

LUCY BILLINGS, J.S.C.