Nikollbibaj v City of New York

[*1] Nikollbibaj v City of New York 2011 NY Slip Op 51656(U) Decided on August 19, 2011 Supreme Court, Queens County Taylor, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 19, 2011
Supreme Court, Queens County

Robertina Nikollbibaj, Plaintiff(s),

against

The City of New York, THE NEW YORK CITY HEALTH AND HOSPITAL CORPORATION and ELMHURST HOSPITAL, Defendant(s).



16051/07

Janice A. Taylor, J.

Upon the foregoing papers it is ORDERED that the motion is decided as follows:

This is an action for personal injuries allegedly sustained by plaintiff on June 4, 2006 at the premises known as Elmhurst Hospital located at 79-01 Broadway, Elmhurst, New York. A trial of this action concluded on October 29, 2010 when the jury determined that the defendants The City of New York, The New York City Health and Hospitals Corporation and Elmhurst Hospital (collectively referred to as "The City") were was not negligent and rendered a verdict for the defendant. Plaintiff now moves, pursuant to CPLR §4401 and §4404, to set aside the jury's verdict.

The Trial Testimony and Jury Charge

[*2]The Plaintiff's Case

During her direct examination, plaintiff Robertina Nikollbibaj ("Nikollbibaj") testified that, on the date of the accident, she went to Elmhurst Hospital to visit her grandmother. At the end of her visit, she left her grandmother's room, walked down a hallway and pushed open a door. Immediately, after she opened the door, a magnetic lock fell from the top of the door and struck her in the head. Plaintiff also testified that, after the accident, she saw metal screws on the floor near the doorway.

As a part of plaintiff's case-in-chief, plaintiff's counsel also read the deposition transcripts of Samuel Liu ("Liu"), Senior Associate Director of Engineering and Maintenance for Elmhurst Hospital and Lieutenant Vincent Frasier ("Frasier"), Police Lieutenant for the New York City Health and Hospitals Corporation. In his deposition, Frasier testified that, in July, 2006, he was a Sergeant assigned as Patrol Supervisor for Elmhurst Hospital. Lieutenant Frasier testified that, as a part of his duties, he filled out a crime and incident report regarding plaintiff's accident after speaking to employees of Elmhurst Hospital about the incident. Finally, Lieutenant Frasier testified that Elmhurst employees, Danny Scherer and Lorraine Schneider were responsible for inspecting the doors and completing records of their inspections which were stored electronically by the hospital.

In his deposition, Samuel Liu testified that the City had no records of inspection, maintenance or complaints related to the subject door or magnetic lock.[FN1] Mr. Liu did state that his search for records revealed the crime and incident report referred to by Lieutenant Frasier.

At the close of plaintiff's case in chief, counsel for the City moved for a directed verdict. This motion was denied by this court.

The City's Case

The City conducted a direct examination of Lorraine Schneider, Assistant Security Systems Administrator at Elmhurst Hospital. Ms. Schneider testified that, in 2006, she was employed by the City and that inspection of the hospital's doors, including the subject door, was within her job responsibility. Ms. Schneider stated that approximately 500 doors in the hospital contained the same magnetic lock that is at issue here; that she inspected these doors approximately three times per week; that her inspection consisted of looking at the door to see that the magnetic lock was secure, [*3]then completing an inspection report. Finally, Ms. Schneider testified that she had never had a problem with the magnetic locks and that she had never seen a lock fall off of the doors.

At the close of defendants' case in chief, plaintiff and the defendants each moved for a directed verdict. This court reserved decision on both motions.

Res Ipsa Loquitur Charge

At the close of trial, this court gave the jury its charge. Included in these charges, over the City's objection, was PJI 2:65 entitled Res Ipsa Loquitur.

PJI 2:65 reads as follows:

The plaintiff must prove by the preponderance of the evidence that the defendant was negligent. The plaintiff may do this by circumstantial evidence, that is, by proving facts and circumstances from which negligence may be reasonably inferred. If the instrumentality causing the injury was in the exclusive control of the defendant, and if the circumstances surrounding the happening of the accident were of such a nature that in the ordinary course of events it would not have occurred if the person having control of the instrumentality had used reasonable care under the circumstances, the law permits, but does not require, you to infer negligence from the happening of the accident.

The requirement of exclusive control is not rigid. It implies control by the defendant of such kind that the probability that the accident was caused by someone else is so remote that it is fair to permit an inference that the defendant was negligent.

 

Motion for Judgment During Trial

CPLR §4401 provides as follows:

Any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue, or at any time on the basis of admissions. Grounds for the motion shall be specified. The motion does not waive the right to trial by jury or to present further evidence even where it is made by all parties.

In support of the instant motion, plaintiff asserts that the verdict must be set aside by this court as against the weight of the evidence and that the doctrine of res ipsa Loquitur requires this court to enter a directed verdict in favor of the plaintiff. Res ipsa loquitur is a legal theory that [*4]allows the trier of fact to draw a legal inference from circumstantial evidence presented (See, Ianotta v. Tishman Speyer Properties, Inc., 46 AD3d 297 [1st Dept. 2007]). "The rule of res ipsa loquitur does not create a presumption in favor of the plaintiffs, but permits an inference of negligence to be drawn."(McCrorie v. Pergament Homes Centers, 230 Ad2d 776 [2d Dept. 1996]. Res ipsa loquitur requires that "(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff" (Dermatossian v. New York City Transit Authority, 501 NYS2d 784 [1988]).

Although plaintiff Nikollbibaj contends that the doctrine of res ipsa Loquitur required the jury to find that the City was negligent in the maintenance of the subject door lock, it is well-settled that "[t]he rule has the effect of creating a prima facie case of negligence sufficient for submission to the jury, and the jury maybut is not required todraw the permissible inference" (Dermatossian , supra); see also, Keyser v. KB Toys, Inc., 82 AD3d 713 [2d Dept. 2011]). Thus, plaintiff was still charged with the burden of proving, with a preponderance of the evidence, that the City was negligent on June 4, 2006 and that this negligence was a substantial factor in causing plaintiff's accident (See, McCrorie, supra). As plaintiff has failed to prove that she is entitled to judgment in her favor as a matter of law, that portion of the instant motion which seeks a judgment during trial, pursuant to CPLR §4401 is denied.

Motion to Set Aside Verdict

Plaintiff also moves, pursuant to CPLR §4404(a) to set aside the jury's verdict.

CPLR §4404(a) provides as follows:

"After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court."

In order for the court to find that the jury verdict should be set aside, pursuant to CPLR §4404(a), on the ground that it is unsupported by legally sufficient evidence, there must be "no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury" (Robinson v City of New York, 300 AD2d 384 [ 2002], quoting Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Moreover, a jury verdict [*5]will not be set aside as against the weight of the evidence unless it could not have been reached on any fair interpretation of the evidence (see Novick v Godec, 58 AD3d 703 [2d Dept.2009]; Salmeri v Beth Israel Medical Center-Kings Highway Div., 39 AD3d 841 [2d Dept. 2007]; Torres v Esaian, 5 AD3d 670 [2d Dept. 2004];). "Where the verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view" (Torres v Esaian,, supra). Great deference must be given to the determination of a jury which heard the testimony and observed the witnesses and their demeanor (See, Jean-Louis v. New York City Transit Authority, 2011 NY Slip Op 6094[2d Dept. 2011]; Exarhouleas v. Green 317 Madison, LLC, 46 ad3d 854 [2d Dept. 2007]).

In the instant case, this court finds that the verdict was supported by legally sufficient evidence and was not against the weight of the evidence.During her direct examination, Ms. Schneider testified that the City conducted a visual inspection of the subject door approximately three times per week, that she had received no complaints regarding the magnetic locks and the she had never seen the locks fall off of the doors. To find that the jury's verdict was against the weight of the evidence, this court would have to find that the defendants' witness, Lorraine Schneider was not worthy of belief (See, Loughman v A.W. Flint Co., Inc., 132 AD2d 507 [1st Dept. 1987]). This court finds that the trial record is not "replete with evidence of negligence" (Nicastro v Park, 113 AD2d 129 [2d Dept. 1985]), and the jury could have reached its verdict in this case based upon a fair interpretation of the evidence. Thus, plaintiff has failed to prove that the verdict is contrary to the weight of the evidence or that, in the interest of justice, the jury's verdict must be set aside (See, Cherisol v. Resknik, 924 NYS2d 847 [2d Dept. 2011]). Accordingly, plaintiff's motion, pursuant to CPLR §4404(a), is denied. It is,

ORDERED, that the instant motion is denied in its entirety. The foregoing constitutes the decision, judgment and order of this court.

Dated: August 19, 2011

 

JANICE A. TAYLOR, J.S.C. Footnotes

Footnote 1: As a part of the charge read to the Jury, this Court included PJI 1:77: General Instruction-Evidence: Failure to Produce Documents, commonly referred to as a Missing Documents Charge. The jury was instructed that if they found that the City had records regarding the maintenance of the door lock and that they failed to produce a reasonable explanation for their failure to produce such documents, the jury may infer that the evidence would not support the City and would not contradict plaintiff's evidence on the question of the City's negligence.