Digennaro v New York City Tr. Auth.

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Digennaro v New York City Tr. Auth. 2011 NY Slip Op 32180(U) July 28, 2011 Sup Ct, NY County Docket Number: 112249/07 Judge: Debra A. James Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 8131201 1 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY DEBRA A. JAMES PRESENT: PART 59 Justice MICHAEL C. Index No.: DIGENNARO, Plaintiff, Motion Date: -v- 112249/07 09/28/10 Motion Seq. No.: 02 NEW YORK CITY TRANSIT AUTHORITY (MTA) and "JOHN DOE" Defendants. I The following papers, numbered 1 to 3 were reAd on this motion to set aside a jury verdict rendered on October 30, 2009. FILED Notice of MotionlOrder to Show Cause -Affidavits -Exhibits Answering Affidavits Replying Affidavits - Exhibits - Exhibits C ross-Motion : 3 0 Yes COUNfY CLERKS OFFICE No T h e court shall grant the plaintiff's motion for an order setting aside t h e jury verdict since t h e finding t h a t the defendant was negligent and that defendant's negligence was not a substantial factor in bringing about plaintiff's injuries was internally inconsistent and contrary to the evidence and a new trial is warranted pursuant to CPLR 4404(a). Plaintiff Michael C . DiGennaro ("DiGennaro") a 6 0 year o l d , I had worked as a concierge for a high rise building on Manhattan's w e s t side I. CHECK ONE: for seventeen years, where he commuted daily by express NON-FINAL DISPOSITION CASE DISPOSED 2. CHECK AS APPROPRIATE: MOTION IS: GRANTED 0 DENIED GRANTED IN PART OTHER 3. CHECK IF APPROPRIATE: SETTLE ORDER SUBMIT ORDER [* 2] bus from his home in Staten Island. On March 13, 2007, he finished work, w e n t to t h e bus stop where he and other passengers boarded the express bus owned and operated by defendant New York City Transit Authority ('ITA''). At the trial, he testified that on that day while in the aisle and holding the overhead handrails, he headed toward the rear of the bus to take a seat. A s the bus pulled o u t of t h e bus stop it suddenly and unusually jerked. A fellow passenger, who was seated on the bus when he observed plaintiff boarding, testified that the stop was "unusual" and "very violent . . . very sharp;" "to the degree that I was sliding out of the s e a t and had to put my hands in front of me to the other seat." As plaintiff tried to grab t h e handles on top of the seats, he fell and struck t h e left side of his head on the handle or arm rail of one of the a i s l e seats, and then struck the right side of his head on the floor of the bus. Plaintiff did not r e t u r n to work a f t e r that day. His treating neurologistlpsychologist testified that in the fall plaintiff suffered a subarachnoid hematoma resulting in an epileptic seizure disorder condition that renders him permanently disabled and unable to return to work. Defendant's examining physician also testified that DiGennaro was totally disabled as a result of his neurological injuries. -2- [* 3] The bus driver testified that he recalled no incident involving the plaintiff or any unusual event on t h e day in question. There was no evidence of the traffic conditions on t h e date or time in question. Nor did anyone complain or report the testimony of the commuter eyewitness and plaintiff, read by was holding onto t h e overhead handrail before the bus made the sudden s t o p . The court instructed t h e jury as to proximate cause and duty An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about an injury. That is, if it had such an affect in producing t h e injury t h a t reasonable people would regard it as a cause of the injury. There may be more than one cause of an injury but to be substantial i t cannot be slight or trivial. You may, however, decide that a cause is substantial even if you assign a relatively small percentage to it. The bus company is a common carrier. A common carrier such as a bus company owes a duty to use reasonable care for the safety of its passengers. However, because stopping, slowing, or starting may not always be done smoothly, and occasionally there may be some jolting, a carrier is not liable to a passenger when that happens. A passenger must also use reasonable care for his or her own protection. But in the absence of any emergency, the carrier must avoid sudden, unusual and violent stops, lurches or j e r k s . If you find that t h e movement or stop of the bus was unnecessarily sudden, unusual or violent, or if necessary it resulted from an emergency created or contributed to by the carrier's own conduct, then you will find that the carrier was negligent. If, however, you find that t h e stop or movement was not sudden, unusual or that such a -3- [* 4] stop or movement was made necessary because of an emergency and that such emergency was not created by or contributed to by the carrier, your finding will be that t h e carrier was not negligent. On October 30, 2009, with one juror dissenting on each interrogatory, t h e jury determined that the TA was negligent, but that TA s negligence was not a substantial factor in bringing about plaintiff s injuries. Plaintiff now moves for an order pursuant to CPLR 5 4 4 0 4 ( a ) setting aside the jury verdict and granting a new trial arguing evidence. T h e court shall grant plaintiff s motion. A jury verdict should n o t be s e t aside as inconsistent and against the weight of the evidence as long as t h e r e is at least one fair interpretation of t h e evidence to support it, the court s disagreement with the jury s findings or unhappiness with the harshness of the result being of no consequence. GatSQn Viclo Realtv C o . , 215 AD2d 174 ( l s t Dept 1995) (citation omitted) . Moreover, A jury s finding that a p a r t y w a s at fault but that that fault w a s not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause . Almestica v C o l o ~ ~ , AD3d 6 2 7 , 6 2 8 ( 2 d D e p t 2 0 0 4 ) . 12 -4- V [* 5] Here, the jury s finding that the TA bus driver was at fault in operating the bus but that such fault was not a substantial factor in bringing a b o u t plaintiff s injuries was inconsistent and against the weight of the evidence as the issues were inextricably intertwined to the point that the jury could not logically find the bus driver negligent without finding proximate cause. Analogous on its facts is the decision in Bucich v Ci cy of New York (111 AD2d 646 [ l s t Dept 1985]), which involved a passenger who tripped and f e l l on a threshold of a vessel s washroom and suffered injuries. T h e Appellate Division determined that the jury s finding that the defendant was negligent in allowing a defective condition to exist without correction or warning was irreconcilable with its finding that the condition was not the proximate cause of plaintiff s injuries. Likewise, in the matter of b a r , the jury s finding that t h e driver moved or stopped t h e bus in an unnecessarily sudden, unusual and violent manner (seeG r w t v New York City Transit Authority, 61 A D 3 d 422 [ l s t Dept 20091) was inextricably interwoven with the cause of plaintiff s fall. a s in Bucich where there was testimony to the effect that plaintiff was not looking,where he was going, t h e issue whether plaintiff failed to hold on to the handrails was pertinent to the issue of comparative negligence, and does not equate with a l a c k of -5- [* 6] proximate cause." Bucich, s u p r a , at 648; Cubeta v YQrk Intl C g r p , 60 AD3d 612 (2d Dept 2009). It is impossible to unravel the jury's deliberations with respect to its answers to t h e interrogatories in order to direct a verdict to either side, so this action must be set down for a new trial. Nathan v Helmsley-Spears, 50 NY2d 507, 518 (1980); Toner v Constable, 61 Misczd 591 (App Term, 1 ' Dept 1969). " Based on t h e foregoing, it is hereby ORDERED that plaintiff's motion to set aside the j u r y verdict rendered on October 30, 2009 is GRANTED pursuant to CpLR 5 4404(a); and it is further ORDERED that the C l e r k is directed to RESTORE this action to the calendar for a new trial. This is t h e decision and o r d e r of t h e court. Dated: t T u l y 28, 2011 ENTER : Id I 1 r J. S. C. DEBRA A. JAMES J.S.C. -6-

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